The Law Offices of Robin Burner Daleo Blog

Estate Planning Strategies for Second Marriages and Blended Families

Fri, 27 Feb 2026 20:06:32 GMT

Estate planning is rarely simple, but it becomes especially personal and emotionally complex in second marriages and blended families. Many people enter a second marriage with children from a prior relationship, existing assets, and a genuine desire to be fair to everyone involved. The challenge is that good intentions do not always translate into good outcomes without proper planning.

If you are remarried, planning to remarry, or part of a blended family, estate planning is not about choosing one family over another. It is about creating clarity, protecting everyone you care about, and preventing disputes that can arise after your death or incapacity. In New York, the law provides default rules, but those rules often do not reflect what families in second marriages actually want.

This article explains why estate planning for second marriages requires extra care, where problems often arise, and which strategies can help blended families move forward with confidence.

Why Second Marriages Change the Estate Planning Conversation

In a first marriage, estate planning often follows a familiar pattern. Assets are left to a surviving spouse and, eventually, to the children. In second marriages, that assumption can quickly fall apart.

Many remarried individuals want to ensure their spouse is financially secure while also protecting inheritances for children from a prior relationship. Others worry about unintentionally disinheriting children or leaving a surviving spouse dependent on adult stepchildren for support. These concerns are reasonable and common.

Without a clear plan, New York law may intervene and produce results that surprise everyone involved.

The Risks of Relying on New York’s Default Laws

When someone dies without a will, New York’s intestacy laws determine who inherits. For blended families, these rules often produce unintended consequences.

In most cases, a surviving spouse is entitled to a significant share of the estate, even when all children are from a prior relationship. This can leave children feeling excluded or confused, especially if they believed certain assets would eventually pass to them. At the same time, a surviving spouse may feel pressure from stepchildren who fear losing family property.

Even when a will exists, New York law protects spouses through the elective share, which allows a surviving spouse to claim a portion of the estate regardless of the will's terms. This means a plan created before remarriage or without careful review may not work as expected.

Estate planning for second marriages must address these legal realities from the outset.

Common Estate Planning Challenges in Blended Families

Blended families face a distinctive mix of legal and emotional challenges.

One issue is uneven family relationships. A parent may be close to their own children but have little relationship with stepchildren. That dynamic can complicate decisions about executors, trustees, and inheritances.

Another challenge is timing. Many people want their spouse to have lifetime use of certain assets, such as the family home, while ensuring those assets ultimately pass to their children. Without proper planning, this goal can lead to disputes, forced sales, or resentment.

There is also the question of fairness versus equality. Equal distributions do not always feel fair in blended families, especially when one spouse brought more assets into the marriage or supported children financially for years before remarrying.

These challenges are normal, but ignoring them often leads to conflict later on.

Why Updating an Old Estate Plan Is Often Not Enough

Many people assume that entering a second marriage requires only a minor update to an existing will. Unfortunately, estate plans created during a prior marriage are often outdated or risky if left largely unchanged.

Old documents may still name a former spouse as executor, trustee, or beneficiary. Others may leave everything outright to children without addressing a new spouse’s legal rights. Beneficiary designations on retirement accounts and life insurance policies are often overlooked.

Marriage can affect an estate plan in ways people do not expect. Failing to review every part of your plan can cause confusion, delays, and disputes when your family needs clarity most.

Estate Planning Strategies for Second Marriages and Blended Families

Thoughtful planning can address these concerns and establish a framework that supports everyone involved.

Using Trusts to Balance Competing Interests

Trusts are often central to estate planning for second marriages. They allow you to support a surviving spouse while protecting assets for children from a prior relationship.

A common strategy is a lifetime trust that provides income or housing for a spouse while preserving the remaining assets for children after the spouse’s death. This structure can prevent misunderstandings and reduce the risk of assets being unintentionally redirected.

Trusts can also provide protection from creditors, remarriage concerns, and long-term care costs.

Planning for the Family Home

The family home is often the most emotionally charged asset in blended families. One spouse may want to stay in the home for life, while children want assurance that the property will remain in the family.

Options include granting a spouse the right to live in the home for life, placing the home in trust, or clearly specifying when the home should be sold and how the proceeds should be divided. Without a plan, the home can quickly become a source of conflict.

Choosing the Right Fiduciaries

Executors, trustees, and agents under powers of attorney play a key role in blended family estate plans. Choosing the wrong person can strain relationships and undermine your intentions.

Some families prefer to appoint a neutral third party, such as a professional fiduciary, rather than place a spouse or child in a position of authority over others. In many cases, this choice helps preserve family harmony.

Reviewing Beneficiary Designations

Retirement accounts, pensions, and life insurance policies pass by beneficiary designation, not through a will. In second marriages, these designations must be carefully reviewed.

Failing to update them can result in assets passing to a former spouse or excluding intended beneficiaries. Coordinating beneficiary designations with your overall estate plan is essential.

Protecting Children’s Inheritances

Many parents in second marriages worry about their children’s long-term financial security. Trust planning can ensure that inheritances are preserved, even if a surviving spouse later remarries or faces financial hardship.

Clear instructions reduce the likelihood that children will feel the need to take legal action to protect their interests.

The Role of Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements can play an important role in second marriages. These agreements clarify expectations, protect premarital assets, and reduce uncertainty for both spouses.

When combined with a comprehensive estate plan, these agreements can limit future disputes and help ensure each spouse’s wishes are respected. They are not about mistrust; they are about transparency and planning ahead.

Planning for Incapacity, Not Just Death

Estate planning is not only about what happens after death. Planning for incapacity is especially important in blended families.

Powers of attorney and health care proxies designate who makes decisions if you are unable to do so. Without clear documents, disputes can arise between a spouse and adult children during already stressful situations. Careful selection of agents can prevent conflict and confusion.

The Importance of Communication

Even the best estate plan can fail if family members are completely surprised. While you are not required to share every detail, discussing your general intentions can reduce misunderstandings and resentment.

Blended families benefit from clarity. Silence often leads to assumptions, and those assumptions often lead to disputes.

Why Experienced Legal Guidance Matters

Estate planning for second marriages involves complex legal and family dynamics. New York law contains nuances that can dramatically affect blended families if plans are not properly structured.

Working with an experienced elder law attorney helps ensure your plan reflects your wishes, protects your family, and evolves as circumstances change.

Ready to Create an Estate Plan That Works for Your Family?

Estate planning for second marriages and blended families is not about choosing sides. It is about creating clarity, protecting the people you love, and avoiding conflict during an already difficult time. Plans that work for first marriages often fall short when remarriage and step relationships are involved.

The Law Offices of Robin Burner Daleo help individuals and families throughout New York navigate estate planning with care, compassion, and clear guidance. If you are remarried, planning to remarry, or unsure whether your current estate plan still reflects your wishes, speaking with an experienced elder law attorney can help you move forward with confidence.

A thoughtful conversation today can spare your family unnecessary stress tomorrow.

Frequently Asked Questions

What happens if I remarry but never update my estate plan?

If you remarry without updating your estate plan, New York law may override parts of your existing documents. A surviving spouse may be entitled to an elective share of your estate, even if your will provides otherwise. Outdated beneficiary designations and fiduciary appointments can also cause serious problems.

Can I leave assets to my children and still protect my spouse?

Yes. Trust-based planning enables you to provide financial support to a surviving spouse while preserving assets for your children. This is one of the most effective estate planning strategies for blended families.

Do I need my spouse’s permission to create an estate plan?

You do not need permission to create an estate plan, but New York law protects spouses in certain ways. Prenuptial or postnuptial agreements can clarify expectations and reduce the risk of future disputes.

Should my spouse or my child serve as executor or trustee?

There is no single right answer. In blended families, appointing a neutral third party can sometimes ease tension and protect relationships. The best choice depends on family dynamics, trust levels, and the complexity of your estate.

Why Your NY Power of Attorney Needs the Right Gifting Language

Mon, 29 Dec 2025 14:18:51 GMT

Why Your NY Power of Attorney Needs the Right Gifting Language

A Power of Attorney often feels like a routine estate planning document. Many people sign it, file it away, and assume it will cover whatever comes next. For caregivers and families in New York, that assumption often creates serious problems. The wording in a Power of Attorney matters more than most people realize, especially the language governing gifts. If the document lacks the right gifting authority, your agent might lack the legal power to carry out important planning steps at the exact moment they matter most.

In New York, gifting authority does not come automatically. If the language is missing or unclear, even a trusted agent acting in good faith might be blocked from protecting assets or completing Medicaid planning. This article explains what NY Power of Attorney gifting authority entails, why it plays a critical role in elder law planning, and what caregivers should review before a crisis forces difficult decisions.

What a New York Power of Attorney Does

A Power of Attorney allows you to designate someone to act on your behalf for financial and legal matters. This person, called your agent, steps in when you cannot manage your affairs. The document is often essential during illness, injury, or cognitive decline, when bills still need to be paid and financial decisions cannot wait.

In New York, Powers of Attorney are governed by strict statutory rules. Banks, title companies, and government agencies rely on the exact language in the document. They do not assume any authority beyond what appears on the page. If a power is missing, even a close family relationship does not fill the gap. This makes careful drafting essential, especially for families planning ahead for long-term care or Medicaid eligibility.

Why Gifting Authority Matters

Gifting authority allows your agent to transfer assets without receiving equal value in return. This includes gifts to children, transfers into trusts, and certain Medicaid planning steps. Without clear gifting language, your agent cannot legally make these transfers, even if everyone agrees they should be made.

This issue often surprises caregivers. They assume a broad Power of Attorney covers these actions, only to discover it does not. Gifting authority matters not because families want to give money away casually, but because many elder law strategies depend on it. Trust funding, asset protection, and long-term care planning often require transfers that count as gifts under New York law.

The Default Rule in New York

New York law does not assume gifting authority. If a Power of Attorney is silent or vague, your agent lacks the power to make gifts. Older versions of the form required a separate Statutory Gift Rider. Newer versions include gifting authority in the main document, but only if the language appears clearly and correctly.

This distinction causes confusion. Many people believe that having a newer form automatically solves the problem. It does not. The specific wording controls. If you ask whether a particular Power of Attorney includes proper gifting authority, I don’t know without reading the document itself.

What Counts as a Gift Under New York Law

Many caregivers think of gifts as small checks or holiday presents. Under New York law, the definition is much broader. A gift includes transferring a home to a trust, moving money into an irrevocable trust, adding someone to a bank account, or forgiving a loan. Even paying someone else's expenses might qualify, depending on the circumstances.

Medicaid agencies closely review these transfers. If the Power of Attorney lacks gifting authority, the agent risks legal challenges and planning failure. Understanding what counts as a gift helps caregivers avoid mistakes that seem harmless at the time but carry serious consequences later.

Why Medicaid Planning Depends on Gifting Language

Medicaid planning often requires transferring assets out of an individual’s name. This might involve transferring a home to a Medicaid Asset Protection Trust or shifting savings into protected accounts. These steps almost always count as gifts under Medicaid rules.

Without gifting authority, your agent cannot complete these actions. Banks and title companies will refuse to process transfers. Families often discover this problem after a parent has already lost capacity, making it far more difficult and expensive to fix the document. If you ask whether gifting authority supports a specific Medicaid strategy, I don’t know without reviewing both the Power of Attorney and the broader plan.

Limits on Gifting Authority

Gifting authority does not confer unlimited power. New York law clearly limits its scope. The Power of Attorney should specify who may receive gifts, how much may be given, and for what purpose. Vague or overly broad language creates risk for both the principal and the agent.

Courts focus on intent and the best interest. Agents must act in the best interest of the person who granted the authority. Self-dealing draws scrutiny, even when the document allows gifting. Clear limits protect families, reduce disputes, and give agents confidence when acting under pressure.

Common Caregiver Scenario Involving Trust Funding

A parent signed a Power of Attorney years ago and now needs nursing home care. The plan involves transferring assets into an irrevocable trust to protect them. When the agent reviews the document, there is no gifting authority.

At that point, the trust cannot be funded. The family faces nursing home costs without protection, and options narrow quickly. Court involvement often becomes the only path forward, adding stress, time, and expense. This situation is common, and early document review prevents it.

Why Courts Matter When Authority Is Missing

When a Power of Attorney lacks gifting language and the principal lacks capacity, families often turn to the courts. This usually involves a guardianship proceeding. Guardianship places decisions under court supervision and removes privacy from family matters.

Court approval takes time and carries ongoing reporting requirements. Costs add up quickly. While guardianship may be necessary, families should treat it as a last resort. Proper Power of Attorney language often avoids this outcome.

How Much Gifting Authority Is Enough

There is no single answer for every family. The appropriate level of gifting authority depends on assets, goals, and family structure. Some documents allow limited annual gifts, while others permit broader authority for trust funding and Medicaid planning.

Overly restrictive language blocks planning when it is needed most. Overly broad language increases risk. A well-drafted document balances flexibility with protection. If you ask what level fits your situation, I don’t know without reviewing your goals and financial picture.

Banks and Institutions Enforce Gifting Rules

Even when families agree on a plan, banks enforce the document’s language. If gifting authority is unclear or missing, institutions will not process transfers. This enforcement frustrates caregivers who assume that family consent resolves the issue.

Clear language prevents delays during already stressful moments. It enables agents to act quickly when timing matters, especially during health emergencies.

The Importance of Updated NY Power of Attorney Forms

New York State has updated its statutory Power of Attorney forms several times. Older documents may lack modern gifting language or fail to meet current standards. Institutions closely monitor form compliance.

If your document is several years old, you should review it. Do not assume intent alone carries legal weight. Updated language matters as much as good planning.

Common Mistakes Caregivers Discover Too Late

Caregivers often discover problems only after capacity is lost, when the parent can no longer sign new documents. Another common mistake is assuming a spouse has gifting authority. Marriage alone does not confer it.

Some families rely on verbal wishes or informal agreements, which carry no legal authority. Each of these mistakes leads to avoidable stress, expense, and family conflict.

How an Elder Law Attorney Reviews Gifting Authority

A thorough review begins with reading the full Power of Attorney. Headings and summaries do not tell the whole story. The specific language governs what an agent may do.

The attorney then reviews how the document aligns with planning goals, including Medicaid eligibility and trust funding. Risk assessment follows. Only after this review does the advice make sense. If someone offers quick answers without reading the document, proceed carefully.

When Caregivers Should Review a Power of Attorney

You should review the document after major life changes, such as a diagnosis, hospitalization, or changes in finances. You should also review it if the document is more than five years old, since laws and forms change.

Waiting until a crisis limits options. Early review keeps decisions within the family and prevents court involvement.

Special Concerns for Blended Families

Blended families require extra clarity. Gifting authority must reflect intentions precisely. Without clear direction, disputes arise between children from different relationships, and agents face accusations even when acting honestly.

Clear language reduces conflict and protects caregivers acting in good faith.

Risks of Acting Without Authority

Agents who act without proper authority face legal exposure. Medicaid agencies question transfers, and other family members challenge decisions. Even honest mistakes create lasting consequences.

You should never assume authority exists. Always confirm it in writing before acting.

Why This Issue Deserves Attention Now

Power of Attorney documents sit quietly until needed. When needed, they must work immediately. Granting authority often determines whether planning succeeds or fails.

Caregivers should not discover gaps during emergencies. Reviewing documents now preserves options and reduces stress later on.

The Law Offices of Robin Burner Daleo advises caregivers and families throughout Suffolk County from offices in Mt. Sinai and Hampton Bays. We help caregivers and families evaluate Power of Attorney gifting authority while protecting Medicaid eligibility and long-term goals.

To schedule a consultation, contact our office. We review your documents, explain your options in clear language, and help you take the right next steps before problems arise.

When You Can Modify an Irrevocable Trust in New York

Fri, 19 Dec 2025 19:07:27 GMT

An irrevocable trust often feels final once you sign it and transfer assets into it. Many caregivers and families believe no changes are possible after that point, which creates stress when health, finances, or family needs change later. In New York, the law provides specific ways to adjust an irrevocable trust when it no longer serves its intended purpose. These options exist because life does not stay the same. Parents age, beneficiaries face new challenges, and laws change over time. If you are caring for a parent or managing a trust created years ago, you should understand your options before a minor issue becomes a crisis. This article explains when amendments to an irrevocable trust are possible in New York and what steps typically follow.

Why Do People Create Irrevocable Trusts?

Most people create irrevocable trusts to protect their assets. Once assets are transferred into the trust, they no longer belong to the individual in a legal sense, and this separation provides important protections. Many New York families use irrevocable trusts to protect a home or savings from nursing home costs, while others use them to reduce estate taxes or to protect assets for children.

This loss of control is intentional. Medicaid rules, tax rules, and creditor laws rely on it. If the trust allowed easy changes, those protections would fail. At the same time, New York law recognizes situations in which a trust must adapt to remain effective.

What Modifying an Irrevocable Trust Really Means

Most irrevocable trusts do not allow direct edits. You cannot rewrite paragraphs or add new pages. Instead, New York law allows specific methods to achieve similar results without rewriting the original document.

These methods include moving trust assets into a new trust, obtaining agreement from all beneficiaries, asking a court to approve changes, or correcting mistakes made when the trust was created. Some trusts also include built-in flexibility. The trust document itself determines which options are available, and even small wording differences matter. If you ask whether your trust qualifies for a specific method, I can’t answer without reviewing the trust document.

Trust Decanting Explained in Plain Language

Trust decanting is the most common way to modify an irrevocable trust in New York. It allows a trustee to transfer assets from an old trust into a new trust with updated terms. The original trust remains in place, but the assets are transferred to a structure that better suits current needs.

Decanting typically works when the trustee has discretion to decide when and how trust assets are distributed. The more discretion the trustee has, the greater the flexibility. Decanting also often avoids court involvement, saving time and reducing stress for families facing urgent issues.

When Decanting Helps Caregivers and Families

Decanting often resolves issues that arise years after a trust is created. Trustees use it to update outdated language or address new family circumstances.

One common situation involves trustees who can no longer serve because of age or illness. If the trust does not specify how to replace them, decanting allows the creation of a new trust with clear rules. Another common issue involves beneficiaries who now receive SSI or Medicaid . Direct trust payments could disrupt benefits, so decanting allows the creation of a supplemental needs trust share that preserves eligibility while still providing support.

Real estate issues also arise frequently. A trust created years ago might not clearly authorize the sale or refinancing of a home. A new trust with modern language often resolves this issue and allows necessary decisions to proceed.

Limits on Trust Decanting

Decanting does not allow unlimited changes. You cannot add new beneficiaries unless the original trust permits it, and you cannot grant a beneficiary more rights than they already had.

Some trusts require mandatory income payments to beneficiaries. These requirements limit what a trustee can change. If the trustee lacks sufficient discretion, decanting might not be possible. If you want to know whether decanting applies to your situation, I can’t tell without reviewing the trust document.

Changing a Trust with a Beneficiary Agreement

New York law allows all beneficiaries to agree to modify or terminate an irrevocable trust. This includes current beneficiaries and those who would receive assets later. This option works best when families communicate effectively, since every beneficiary must agree and one objection halts the process.

Practical problems often arise. Some beneficiaries are minors or lack capacity, which requires court-appointed guardians and adds time and cost. Families most often use this method when selling trust property, changing trustees, or terminating small trusts that no longer serve a purpose.

Court-Approved Trust Changes

When decanting does not apply and the beneficiaries do not agree, courts provide another option. New York courts consider whether the trust still serves its original purpose and whether the circumstances have changed in ways the trust did not anticipate.

Courts focus on issues such as outdated tax rules, a lack of authority to manage assets, or changes in a beneficiary’s health or finances. Court proceedings take time and involve legal fees, but they provide certainty. Once a judge approves a change, it carries legal authority. I don’t know whether a judge would approve your request. Each case depends on its facts.

Fixing Mistakes Made When the Trust Was Created

Some trusts contain drafting errors that families discover years later during Medicaid applications, tax filings, or property sales. New York law allows courts to correct these errors so the trust reflects the creator’s intent. This process is called reformation.

Reformation applies only to errors, not to new planning goals. Courts require proof of both the mistake and the original intent, often through attorney notes or correspondence. If you believe a trust contains an error, gather documents early. I can’t determine whether reformation applies without reviewing the evidence.

Built-In Flexibility Inside Some Trusts

Some irrevocable trusts include flexibility from the start, reducing the need for court involvement. Examples include the power to replace a trustee, limited authority to redirect assets among family members, and the ability to exchange trust assets for tax-planning purposes.

Not every trust includes these provisions. If yours does, these provisions often provide the simplest solution.

When Caregivers Should Review an Irrevocable Trust

Many caregivers wait too long to review a trust. You should review it whenever circumstances change. Common triggers include a parent needing nursing home care, changes in Medicaid rules, a beneficiary facing divorce or debt, or the need to sell trust property.

You should also review any trust created more than ten years ago. Early review preserves options, while waiting often forces court involvement during emergencies.

Special Concerns for Medicaid Trusts

Medicaid asset protection trusts require careful handling. Improper changes risk restarting the five-year lookback period or treating trust assets as available resources.

Decanting often preserves Medicaid protection when structured properly, and court-approved changes also work when handled carefully. Informal changes carry serious risk. If you ask whether a specific change affects Medicaid eligibility, I can’t answer without reviewing the trust and financial details.

Risks of Informal Trust Actions

Some families resort to workarounds. Trustees distribute assets improperly, or parents continue treating trust property as personal property. These actions undermine trust protections.

Medicaid agencies and tax authorities closely review trust administration. Improper actions can result in benefit denial, penalties, and family conflict. Fixing mistakes later costs more than addressing them early.

How an Elder Law Attorney Evaluates Trust Changes

A thorough review begins with the trust language. The attorney examines every section and identifies the beneficiaries and trustee authority. Next, the review covers tax and Medicaid impacts, family dynamics, and timing.

Only after this review does the attorney recommend a strategy. If someone gives quick answers without reviewing the trust, you should proceed cautiously.

Common Caregiver Situations

A parent placed a home in an irrevocable trust years ago and now wants to sell and downsize, but the trust does not clearly authorize a sale. Decanting often resolves this issue by transferring the home into a new trust with clear authority to sell. Sale proceeds remain protected when handled properly, yet many families delay action because they assume nothing can be done.

A trust created years ago for children may now include a beneficiary receiving SSI. Direct trust payments can jeopardize benefits. Decanting or court approval allows the creation of a supplemental needs trust share, protecting benefits and long-term support.

Trustees also age and experience health declines. A trust without replacement rules carries risk. Court appointment or decanting restores proper management, while delay leads to missed filings and financial harm.

Why Timing Matters

Early action keeps options open. Delay narrows choices and increases stress. Regular reviews help caregivers protect parents and beneficiaries.

An irrevocable trust does not lock you in forever. New York law provides structured ways to address real problems when a trust no longer serves its intended purpose. You should not assume change is impossible, and you should avoid informal fixes.

The Law Offices of Robin Burner Daleo advises families throughout Suffolk County from offices in Mt. Sinai and Hampton Bays. We help caregivers and families evaluate irrevocable trust amendments while protecting Medicaid eligibility and long-term goals.

To schedule a consultation , contact our office. We review your trust, clearly explain your options, and help you decide on next steps with confidence.

Power of Attorney in New York: What Every Caregiver Needs to Know

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 16 Jul 2025 20:47:46 GMT

Suppose you’re helping care for an aging parent or loved one. In that case, you may already know how overwhelming the Responsibilities can be, including managing medications, keeping track of doctor appointments, and ensuring that bills are paid on time. But what happens when your loved one can no longer make financial or legal decisions for themselves? That’s where a Power of Attorney comes in.

In New York, a Power of Attorney (POA) is a legal document that allows someone to act on another person’s behalf in financial and legal matters. It’s one of the most essential tools for caregivers—but also one of the most misunderstood.

Let’s walk through the essentials of Power of Attorney, what’s changed under recent New York law, and how it can protect caregivers and their loved ones.

What Is a Power of Attorney?

A Power of Attorney is a written document where one person (called the principal ) grants another person (called the agent ) the authority to handle their financial and legal decisions.

Once signed, the agent can act within the limits set by the document.

Why Caregivers Shouldn’t Wait

Many people think they can wait until something happens before creating a Power of Attorney. Unfortunately, by the time a loved one is no longer able to make decisions, it may be too late.

Without a valid POA in place, caregivers might have to undergo a lengthy and costly guardianship process just to obtain the authority to handle basic financial matters like:

Paying bills
Accessing bank accounts
Managing insurance claims
Handling Medicare or Medicaid paperwork

Establishing a Power of Attorney now—while your loved one is still mentally able to do so—can save time, money, and stress later.

Types of Powers of Attorney in New York

There are a few types of POA documents, but the most common for caregivers is the Durable Power of Attorney . Let’s break it down:

1. Durable Power of Attorney This remains valid even if the principal becomes mentally incapacitated. This is the type most caregivers need, as it ensures continuity during a medical crisis.

2. Non-Durable Power of Attorney This is usually used for specific transactions, such as selling a home, and it terminates if the principal becomes incapacitated.

3. Springing Power of Attorney This only takes effect under specific conditions—usually when the principal becomes incapacitated.

What the New York POA Law Changed

In 2021, New York State revised its Power of Attorney laws to make the process simpler and more accessible for caregivers and seniors. These updates took effect on June 13, 2021.

Here are the key changes that matter:

Simplified Form: The old form was long and complex. The new version is easier to understand and complete.
Elimination of Exact Wording Requirement: Previously, any deviation from the statutory wording could invalidate the POA. The law now allows for “substantial conformity.”
Witness Requirement: The new form must be signed in front of a notary and two witnesses.
Sanctions for Financial Institutions: Banks that unreasonably refuse to honor a valid POA can now face penalties.

These changes were implemented to cut red tape and help families avoid unnecessary legal hurdles—something every caregiver can appreciate.

What Powers Does an Agent Have?

The POA document clearly states what the agent is authorized to do. These powers can be broad. or restricted, based on the principal's preferences.

Some common powers include:

Writing checks and paying bills
Managing retirement accounts
Buying or selling real estate
Handling tax matters
Applying for government benefits like Medicaid
Accessing digital accounts

In New York, there is a separate section called the Statutory Gift Rider . If the agent is permitted to make gifts or transfers of the principal’s assets—including Medicaid planning transfers—this section must be completed and signed separately.

Caregivers should always consult with an elder law attorney before granting gifting powers, especially when planning for long-term care.

Choosing the Right Agent

Trust is everything. A Power of Attorney grants another person access to your money, property, and personal affairs. That’s why it’s so important to select an agent who:

Is responsible and financially stable
Understands your wishes and values
Can keep clear records
Will act in your best interest

It’s also wise to name a backup or successor agent in case the first person can’t serve.

For caregivers, the agent is often a child, spouse, or sibling—but think carefully before taking on this role. It involves a legal obligation to act honestly, responsibly, and in the best interest of the principal.

Common Mistakes to Avoid

Here are a few pitfalls we see too often:

❌ Waiting too long: Once someone loses capacity, they can no longer legally sign a POA. At that point, the only option might be guardianship.

❌ Using a generic online form: Each state has its own requirements. A “one-size-fits-all” POA from the internet might not meet New York’s legal standards.

❌ Not including the Statutory Gift Rider: If you plan to do Medicaid planning or transfer assets, this must be specifically authorized.

❌ Not notifying the agent: Simply signing the document isn’t enough. Make sure your chosen agent is aware of where the original is kept and understands their responsibilities.

How to Create a Power of Attorney in New York

Meet with an elder law attorney: a qualified attorney can draft a POA tailored to your loved one’s situation and ensure all legal requirements are met.
Sign in the presence of a notary and two witnesses: New York requires both for validity.
Store the original in a secure yet accessible place: Share certified copies with the agent and financial institutions if necessary. Consider signing multiple orginal documents.
Review the document regularly: Life changes—so should your POA. Review it every few years or after significant life events.

Final Thoughts: Don’t Wait for a Crisis

If you’re a caregiver, helping your loved one establish a Power of Attorney is one of the kindest—and most practical—actions you can take. It enables you to handle their affairs legally and shields both of you from unnecessary difficulties.

Every situation is unique. At The Law Offices of Robin Burner Daleo , we’re here to help families on Long Island understand their options and develop a solid plan. Whether you’re just starting out or need to update an old POA, we’re ready to guide you through it.

Frequently Asked Questions (FAQs)

1. Does a Power of Attorney give me control over medical decisions? No. A financial Power of Attorney only covers financial and legal matters. To make medical decisions, your loved one would need a separate document called a Health Care Proxy.

2. Can I create a Power of Attorney for someone with dementia? Yes, as long as the person understands what the document means. Your attorney can assess this.

3. Do banks have to accept a Power of Attorney? Yes—if the POA meets New York’s legal requirements. Banks can request to review the document and may ask for a recent copy, but they cannot unreasonably reject a valid POA under the new law.

4. Can a Power of Attorney be revoked? Yes. As long as the person who created it is mentally competent, they can revoke it at any time. Revocations should be made in writing and shared with all relevant institutions.

Do you need a Power of Attorney?

robin@burnerdaleolaw.com (Robin Burner Daleo) — Thu, 12 Dec 2024 20:07:35 GMT

Question:

My husband and I own almost all of our assets jointly and those which we do not, have designated beneficiaries. Is it still necessary to have a Power of Attorney?

Answer:

The answer is yes. Clients often ask this question and our answer is always the same, no matter how your property is titled it is still necessary to have a comprehensive Power of Attorney document in place. A Power of Attorney is a document in which a person (the Principal) can designate an Agent (an Attorney-in-Fact) to act on his or her behalf with respect to financial or legal matters. A Power of Attorney, in most cases, is effective when signed and contrary to the beliefs of many, there is no requirement that the Principal be incapacitated or unable to handle their own finances in order for the Agent to act. Once the document is signed, then both Principal and Agent have the power, concurrently, to transact business on behalf of the Agent, to the extent that the document permits.

Although you can access all accounts that you and your spouse hold jointly without a Power of Attorney, you may still find yourself in a situation where one would be necessary. A comprehensive document provides for more than just simple access to accounts. For example, a Power of Attorney can allow your Agent to access and manage any retirement accounts you own. This is important because most retirement accounts are owned by only one person and, absent a Power of Attorney, the account could be inaccessible in a crisis. Also, without a Power of Attorney, there is no person authorized to communicate with any Pension Plan or your employer should the need arise. Another example of a time that you may need a Power of Attorney is in the context of Medicaid Planning. If your spouse suffers a catastrophic illness and requires long term care in a skilled nursing facility, Medicaid Planning will be necessary to preserve the assets. The healthy spouse can engage in crisis planning (despite the five year look-back), which will protect most if not all of their assets. Part of this plan would be to transfer the home and any assets that were either joint or in the sick spouse’s sole name to the healthy spouse. While you would be able to transfer the joint assets without the use of the Power of Attorney, you would be unable to transfer the assets in the sick spouse’s sole name without a Power of Attorney with an unlimited power to gift. Without this power to gift, you would be facing a situation wherein you would need to seek Guardianship to have the power to make the requested transfers. For these and many other reasons, the Power of Attorney can be invaluable in a time of crisis.

A Power of Attorney is an important document and we would advise you to meet with a professional who practices in this area to discuss this in further detail.

By Robin Burner Daleo, Esq.

Community Medicaid

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 06 Dec 2024 21:42:18 GMT

One of the issues that we see facing many of our clients is an inability to implement and access services once an application for Community Medicaid has been filed and approved. Oftentimes the reason for this is that they are unaware that there is a secondary process which much be followed to access the services, moreover for those clients who have been receiving services they often face a reduction of hours and are unaware that they can appeal that decision. After an individual is financially approved by the local Department of Social Services for Community Medicaid, he or she must enroll with a Managed Long-Term Care Company (or “MLTC”) in order to access services. The MLTC will send a nurse to the Medicaid recipient in order to evaluate and create a care plan. The evaluation typically will result in an award of hours to the Medicaid recipient for a home health to come to the home and assist the recipient with activities of daily living. The amount of hours can consist of a few hours per day or live-in care depending on the needs of the Medicaid recipient.

Once enrolled, the recipient may request an increase in hours based on a decline in health and additional assistance required. There is a possibility, that upon a re-assessment, the MLTC could determine that the recipient has improved and make the determination to decrease the original awarded hours. If the MLTC plan seeks to deny an increase or reduce personal care services, the recipient can file an appeal. Additionally, in order to file an internal appeal on behalf of a recipient, the representative must have authority in writing on file with the MLTC plan. It is important to have the authority in writing on file with the plan from the time the recipient is enrolled because if there is a decrease in hours, the representative will only have ten (10) days to file the appeal.

This process can be overwhelming and difficult to navigate. If you have questions, you should consult an Elder Law expert in your area.

By Robin Burner Daleo, Esq.

The Important Reasons to Have a Will

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 06 Dec 2024 21:41:26 GMT

Why Everyone Needs A Will

One of the most common questions we hear as estate planning attorneys is “do I need a Will ?” Some people think if they do not have a house or a large estate, or a complicated distribution, they may not need a Will. The reality is almost everyone should have a Will. This article will discuss some of the most important reasons why you should consider adding a Will to your estate plan.

Thankfully, if you pass away without a Will, it does not mean your family will not receive your assets. The laws of intestacy create a list of presumed beneficiaries for those that die without a Will. For a married person with no children, the law provides that the surviving spouse inherits everything. For a married person with children, the law provides that the spouse receives the first $50,000 and half the remaining estate, with the other half of the estate going to the children, in equal shares. For unmarried individuals, the estate would be distributed to their parents, if surviving, or to their siblings, if the parents are not surviving. The list goes on to more remote relatives.

However, relying on the laws of intestacy ignores the desires of those who may want to deviate from what the law presumes you would want. Additionally, just as the law presumes the individuals who would inherit your estate , the law also creates an order of priority as to who would serve as the fiduciary of the estate. This is known as the Administrator of the estate. For unmarried individuals with children, the law states that any child can serve, creating a potential for conflict if multiple children want to serve and disagree with how to manage the administration of the estate.

The laws of intestacy do not offer any planning for disabled or underage beneficiaries, or those who may have creditor issues. If you pass away and one of your heirs is a disabled person receiving means-based government benefits, they may lose their benefits as a result of inheriting from your estate. Similarly, if a child under the age of 18 inherits from your estate, they are unable to hold property without an adult being appointed as a guardian. Once they reach the age of majority, the guardian must turn over the remaining assets regardless of their maturity level, or ability to manage the assets. This can have disastrous results.

The laws of intestacy also do not provide for the opportunity for any estate tax planning. If your estate is valued at larger than the current New York estate tax exemption, there are planning opportunities available in your Will to leave more assets tax free to the remainder beneficiaries after your spouse. However, without a Will this opportunity is lost.

Executing a Will avoids these issues. You can clearly state who should manage your estate, known as an Executor, and who the intended beneficiaries are with customized provisions. You can also provide language that ensures that whoever you name as the executor need not purchase a bond offering savings to the estate and incorporate estate tax planning. Lastly, you can provide provisions for what should happen in the event that a beneficiary is disabled, has creditor issues or underage. You can also nominate your choice of guardian or trustee for these individuals.

While having a Will prepared by an attorney comes with a cost, the long-term benefits of having a well thought out estate plan are immeasurable.

Estate Planning and Supplemental Needs Trust

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 06 Dec 2024 21:06:14 GMT

Estate Planning and Supplemental Needs Trust

When planning for the differently-abled, the use of Supplemental Needs Trusts as part of your estate planning will ensure that you have provided protections for those with special needs and disabilities. When considering your estate planning it is important to consider any beneficiaries who may have special needs or disabilities. Receiving an outright inheritance could negatively affect these individuals, as oftentimes they are entitled to, and receive, need-based government benefits such as SSI, Medicaid, and Group Housing, to name a few, which either supplement or fully cover the living and medical expenses of the individual. Safeguarding these benefits by using Supplemental Needs Trusts rather than an outright distribution can ensure that you can leave to a loved one who has special needs without the risk of interfering with their government benefits.

Supplemental Needs Trusts can be established as “first-party” or “third-party trusts”. This article highlights Third-Party Supplemental Needs Trusts which are, simply stated; trusts funded with the assets of a third-party, anyone other than the differently-abled individual. To understand the difference, first-party trusts are funded with the assets or income of the differently-abled person and are often used to safeguard benefits after the individual receives an inheritance or some other windfall. First-Party Supplemental Needs Trusts are also often used to protect money that was in the name of the individual at the onset of a disability. First-Party Supplemental Needs Trusts are available to persons under the age of sixty-five, and thanks to recent legislation, can be created by the individual him or herself, a parent, guardian, or through the court. Although a terrific planning tool, when possible it is preferable to address these planning needs ahead of time to ensure no interruption of benefits and a maximum preservation of assets. The first-party trust requires a payback provision which dictates that any monies that remain in the trust at the time of the individual’s death must be paid to the State in an amount equal to the medical assistance paid on behalf of the individual.

Third-Party Supplemental Needs Trusts can either stand alone or be incorporated into your estate planning. These trusts can be created by anyone for the benefit of the disabled individual. They can be funded upon creation or can be prepared with the idea of funding at the time of the death of the creator. The assets in the trust can be used to provide the individual with comforts they would otherwise not be able to afford. Because these trusts are set up with the funds of a third-party, unlike the First-Party Supplemental Needs Trusts, they do not have a payback provision. Upon the death of the original beneficiary of the trust, whatever assets remain in the trust can be distributed in accordance with the Grantor’s wishes. By leaving assets in a Supplemental Needs Trust, you would be able to provide for your loved one and ensure the continuation of imperative benefit that he or she relies on.

It is important to note that funds between a first-party trust and a third-party trust should never be co-mingled. Specifically, if monies which originated with the disabled individual goes into a third-party trust, the protections afforded to third-party trusts (i.e. no payback provision) may extinguish and a payback could be required.

Overall, Supplemental Needs Trusts are invaluable for planning for those differently-abled. The Trusts can enhance the quality of life for the person and supplement the benefits he or she is already receiving.

By Robin Burner Daleo, Esq.

Preparing for the TCJA Sunset in Estate Tax

robin@burnerdaleolaw.com (Robin Burner Daleo) — Tue, 03 Dec 2024 15:56:22 GMT

The Countdown Begins: Preparing for the TCJA Sunset in Estate Tax

As the Tax Cuts and Jobs Act (TCJA) approaches sunset at the end of 2025, significant changes loom, particularly in estate tax planning . This pivotal shift, which will reduce the estate tax exemption limits, requires meticulous preparation to safeguard one's assets. This comprehensive guide delves into the implications of the TCJA sunset on estate tax and outlines strategies to navigate these changes effectively.

Understanding the TCJA Sunset

The TCJA, enacted in 2017, introduced substantial changes to the U.S. tax code, including a temporary increase in estate tax exemption limits. These enhancements, however, are set to expire on December 31, 2025, unless Congress takes action to extend them. Post-sunset, the estate tax exemption limits will revert to pre-TCJA levels, significantly impacting estate tax planning strategies.

Why the TCJA Sunset Matters

The impending reduction in estate tax exemption limits is a critical concern for individuals with substantial estates. Currently, the exemption limit stands at approximately $12.92 million per individual, but it is expected to decrease to around $5.49 million (adjusted for inflation) once the TCJA sunsets. This change could expose many estates to federal estate taxes, necessitating proactive planning to minimize tax liabilities.

Key Components of Estate Tax Planning

To effectively prepare for the TCJA sunset, several essential components of estate tax planning must be considered:

1. Reviewing Current Estate Plans

A thorough review of your existing estate plan is imperative. Assess how the reduced exemption limits will impact your estate and identify areas that require adjustments. Consult with an estate planning attorney to ensure your plan is aligned with the forthcoming changes.

2. Gifting Strategies

One of the most effective strategies for mitigating estate taxes is gifting. Consider using the current high exemption limits to transfer assets to beneficiaries now, thereby reducing the taxable portion of your estate.

3. Trust Structures

Incorporating trust structures, such as irrevocable trusts, can provide significant tax advantages. Trusts can help manage and protect assets, ensuring they are distributed according to your wishes while minimizing estate tax exposure.

4. Life Insurance Policies

Life insurance policies can serve as a valuable tool in estate tax planning. Policies held within an irrevocable life insurance trust (ILIT) can provide liquidity to cover estate taxes, ensuring that other assets are preserved for your heirs.

Exemption Limits and Their Implications

The reduction in estate tax exemption limits post-TCJA sunset will have profound implications for estate planning:

1. Increased Tax Liability

With lower exemption limits, a greater portion of estates will be subject to federal estate taxes. This increase in tax liability necessitates strategic planning to minimize the financial impact on your heirs.

2. Estate Valuation

Accurate estate valuation becomes crucial under the new limits. Ensuring that all assets are appropriately valued and documented can prevent potential disputes and additional tax burdens.

3. Planning Flexibility

The changing landscape underscores the importance of flexibility in estate planning. Adopting strategies that can be adjusted as tax laws evolve will provide greater security and peace of mind.

Navigating the TCJA Sunset: Practical Steps

Proactively preparing for the TCJA sunset involves a series of practical steps:

1. Consultation with Professionals

Engage with estate planning professionals, including attorneys and financial advisors, to review and update your estate plan. Their expertise can help navigate the complexities of the changing tax environment.

2. Lifetime Gifts

Utilize the current high exemption limits to make lifetime gifts. This strategy not only reduces the taxable portion of your estate but also allows you to witness the benefits of your gifts during your lifetime.

3. Charitable Giving

Incorporate charitable giving into your estate plan. Donations to qualified charities can reduce your estate's taxable value while supporting causes important to you.

4. Trust Reassessment

Reassess your existing trust structures and consider establishing new ones if necessary. Trusts can offer significant tax benefits and provide a controlled mechanism for asset distribution.

Legal Considerations in Estate Tax Planning

Navigating the legal intricacies of estate tax planning requires careful attention:

1. Updating Legal Documents

Ensure all legal documents, including wills and trusts, are updated to reflect the impending changes in exemption limits. Regular reviews will help maintain alignment with your estate planning goals.

2. Compliance with Tax Laws

Stay informed about federal and state tax laws that may impact your estate. Compliance is crucial to avoid penalties and ensure the smooth execution of your estate plan.

3. Privacy and Confidentiality

Maintain privacy and confidentiality in your estate planning documents. Sensitive information should be protected to prevent unauthorized access and potential disputes.

Challenges in Estate Tax Planning

Despite thorough planning, several challenges may arise in estate tax planning:

1. Legislative Uncertainty

Legislative changes could add uncertainty to estate tax planning. Staying informed and flexible in your approach can help mitigate this risk.

2. Asset Liquidity

Ensuring sufficient liquidity to cover estate taxes is a common challenge. Life insurance policies and strategic asset management can provide the necessary funds without liquidating essential assets.

3. Family Dynamics

Family dynamics and potential disputes can complicate estate planning. Clear communication and detailed documentation can help prevent conflicts and ensure your wishes are honored.

Best Practices for Effective Estate Tax Planning

Adopting best practices can enhance the effectiveness of your estate tax planning:

1. Early Planning

Begin planning early to take full advantage of current exemption limits and gifting strategies. Early planning allows for a more comprehensive and practical approach.

2. Regular Reviews

Conduct regular reviews of your estate plan to ensure it remains aligned with your goals and the changing tax landscape. Periodic updates can address new assets, changes in family circumstances, and legislative adjustments.

3. Professional Guidance

Seek professional guidance to navigate the complexities of estate tax planning. Attorneys, financial advisors, and tax professionals can provide invaluable insights and tailored strategies.

The TCJA sunset presents a critical juncture in estate tax planning, necessitating proactive measures to safeguard your assets and minimize tax liabilities. You can navigate these changes by understanding the implications of reduced exemption limits and implementing strategic planning.

Prepare for the TCJA sunset and protect your estate. Contact The Law Offices of Robin Burner Daleo for expert guidance in estate tax planning and exemption limit strategies. Ensure your assets are safeguarded, and your estate plan is robust. Schedule a consultation now!

FAQs

What is the TCJA sunset?

The TCJA sunset refers to the expiration of certain provisions of the Tax Cuts and Jobs Act at the end of 2025, including the temporary increase in estate tax exemption limits. Post-sunset, these limits will revert to pre-TCJA levels, affecting estate tax planning strategies.

How will the TCJA sunset affect estate tax exemption limits?

The TCJA sunset will significantly reduce estate tax exemption limits, from the current level of approximately $12.92 million per individual to around $5.49 million (adjusted for inflation). This reduction will increase the portion of estates subject to federal estate taxes.

What strategies can help mitigate estate taxes?

Strategies to mitigate estate taxes include utilizing lifetime gifts, establishing trust structures, incorporating charitable giving, and leveraging life insurance policies. Early planning and professional guidance are crucial to effectively implementing these strategies.

Why is flexibility necessary in estate tax planning?

Flexibility is essential in estate tax planning to adapt to changing tax laws and family circumstances. Adopting strategies that can be adjusted over time provides greater security and ensures your estate plan remains effective.

Enroll with a Managed Long-Term Care Company

robin@burnerdaleolaw.com (Robin Burner Daleo) — Thu, 31 Oct 2024 14:29:00 GMT

One of the issues that we see facing many of our clients is an inability to implement and access services once an application for Community Medicaid has been filed and approved. Oftentimes the reason for this is that they are unaware that there is a secondary process which much be followed to access the services, moreover for those clients who have been receiving services they often face a reduction of hours and are unaware that they can appeal that decision. After an individual is financially approved by the local Department of Social Services for Community Medicaid , he or she must enroll with a Managed Long-Term Care Company (or “MLTC”) in order to access services. The MLTC will send a nurse to the Medicaid recipient in order to evaluate and create a care plan. The evaluation typically will result in an award of hours to the Medicaid recipient for a home health to come to the home and assist the recipient with activities of daily living. The amount of hours can consist of a few hours per day or live-in care depending on the needs of the Medicaid recipient.

This process can be overwhelming and difficult to navigate. If you have questions, you should consult an Elder Law expert in your area.

By Robin Burner Daleo, Esq.

The determination of capacity when signing a Power of Attorney

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 21 Oct 2024 16:33:56 GMT

Question:

My mother has just been diagnosed with Dementia. It is in the early stages and she is still very lucid, can she still sign a Power of Attorney?

Answer:

It depends. For starters, a Power of Attorney is the document which names a person or persons to handle your business and financial decisions. A Power of Attorney is valid when signed and permits the Agents named to step into your shoes and conduct all business and financial decision as if they were the Principal themselves. For that reason, in order to make the decision to name a person as an agent to act on your behalf the law requires that you, as the principal, possess a certain level of capacity. When a person is diagnosed with any cognitive deficit the concern of who will act for them if a time comes that they no longer can takes on significant importance. The capacity required to execute a Power of Attorney in New York is defined in the General Obligations Law as the ability to comprehend the act of executing and granting a Power of Attorney. In other words, the person granting the Power of Attorney must understand the document they are signing as well as the provisions contained in the document. A diagnosis of dementia does not necessarily result in an inability to execute legal documents. Oftentimes, persons with mild symptoms still possess the capacity required to execute legal documents. The determination of capacity should be assessed on a case by case basis, taking into account the individual’s familiarity with their family members and financial situation. Specifically, it is important that the Principal understand the powers that they are entrusting in another individual. It is also important that the Principal exhibit a clear understanding and willingness to grant the agent or agents named in the document this power. Assuming that you are able to establish this, a Power of Attorney document can be executed. In the event that a determination is made that the principal lacks the requisite capacity to sign the Power of Attorney, in order for someone to have the power to act on their behalf, a Guardianship proceeding would have to be commenced in the New York Supreme Court. While this is an alternative which must sometimes be relied upon, the preferable course of action is to have your mother execute a Power of Attorney when she can still make decisions as to who should act on her behalf.

Statutory Gift Rider

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 11 Oct 2024 14:17:46 GMT

Question:

My mother recently signed a Power of Attorney but since she does not typically give gifts, she decided against signing the Statutory Gift Rider. A friend of mine told me that she may still want to sign that part of the document, is this true?

Answer:

Yes, it may be. The Power of Attorney is a document in which a person referred to as “the Principal” can designate another person or persons referred to as “Agents” to act on their behalf with respect to all business and financial matters. A Power of Attorney, in most cases, is effective when signed and contrary to the beliefs of many, there is no requirement that the Principal be incapacitated or unable to handle their own affairs in order for the Agent to act. Once the document is signed both the Principal and the Agent have the power, concurrently, to transact all business that the Power of Attorney allows for. In New York a change in the law occurred back in 2010 which required that the form signed be statutory and also makes provisions that the gifting power be dealt with in a separate rider referred to as the Statutory Major Gift Rider. Prior to this change, the power to gift was not separated and if you wanted to grant that power to an agent you simply initialed the appropriate box. What many of our clients and some practitioners were unaware of was that the gifting power deals with more than the traditional concept of gifting. Where an agent wants to transfer any asset out of the name of the principal, he or she does so using the gifting power. For that reason, the gift rider becomes an integral part of many asset protection plans. For example, consider a situation where a husband and wife own a home jointly and one of them suffers a catastrophic illness, which requires the need for Nursing Home care. The well spouse can likely engage in crisis planning (despite the five-year look-back for Chronic Medicaid ) which will protect all of their assets. Part of this plan would be to transfer the home and any assets that were either joint or in the sick spouse’s sole name to the well spouse. While you would be able to transfer the joint assets without the use of the gift rider, you would need the rider to transfer the home and the assets owned individually to the well spouse. Absent the gifting power in the document, you may be facing a situation wherein you need to seek Guardianship to have the power to make the requested transfers. This is only one example of how the gift rider may be important in a time of crisis. A Power of Attorney is an important document, if you are unsure of whether you have the full gifting power in your documents we would advise you to have them reviewed by a professional who practices in this area.

By Robin Burner Daleo, Esq

October is Special Needs Month

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 07 Oct 2024 22:58:46 GMT

As October is Special Needs Month, we thought that this would be an appropriate time to address some planning consideration for families who have loved ones with Special Needs. Specifically, Supplemental Needs Trusts can be an invaluable tool when planning for children and spouses with disabilities. A Supplemental Needs Trust (SNT) is an irrevocable trust designed to provide benefits to, and protect the assets of, physically disabled or mentally disabled persons. The SNT allows such persons to be qualified for and receive governmental health care benefits, such as long-term nursing or home care benefits and Supplemental Security Income.

A first-party SNT is funded with assets of the disabled individual who is under the age of sixty-five, and may only be created by a parent, grandparent, or legal guardian of the disabled person. The court also has the power to create a first party SNT for a disabled individual. Oftentimes these trusts are used where an individual suffers a disability from an accident or medical malpractice and consequently receives an award as a result of a lawsuit. Additionally, where an individual has his own money at the time of the onset of a disability or where he receives an inheritance, a first party SNT is an appropriate planning tool. Monies deposited into these trusts can be used to enhance the quality of life of the disabled individual by covering the cost of any expense which would not otherwise be covered by Medicaid. It is important to note that a properly drafted, valid first party SNT must include what is commonly known as a “payback” provision. This provision dictates that any monies that remain in the trust at the time of the disabled individual’s death must be paid to the state in an amount equal to the medical assistance paid on behalf of the individual. Should there be any monies left over after the payback, those monies will be paid to the remainder beneficiaries in accordance with the terms of the trust.

Oftentimes, clients come to our office with the mistaken belief that the only way to ensure that their disabled child will continue to receive benefits at the time of their parents’ death is to disinherit them; fearful that an inheritance will place their disabled child above the threshold asset and income level. This is simply not the case. A third party SNT created for the benefit of a disabled individual not only provides the family a way to include their disabled child in their estate plan but can also provide the disabled individual with an enhanced quality of life. The assets in the trust can be used to provide the disabled individual with comforts they would otherwise not be able to afford. Because these trusts are set up with the funds of a third party, unlike the first party SNT, they do not have a payback provision. Upon the death of the original beneficiary of the trust, whatever assets remain in the trust can be distributed in accordance with the Grantor’s wishes.

In sum, Supplemental Needs Trusts are invaluable planning tools for those who have a loved one with a disability. The ability to create and fund a SNT for a loved one who is receiving government benefits ensures an enhanced quality of life for disabled individuals who are fortunate enough to be beneficiaries of such trusts.

Challenges and Solutions for Chronic Medicaid Parents

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 20 Sep 2024 18:58:54 GMT

Question:

My mother recently fell and is in a rehabilitation center with Medicare paying her bill. I don’t think I will be able to take her home this time, it seems that she will need full time nursing home care. I understand that there is a five-year lookback, how will this affect my mother’s eligibility for Medicaid.

Answer:

As you are likely aware, Medicaid is a means tested program and as such, to be eligible applicants must meet certain income and eligibility requirements. These requirements differ depending on the program the individual is applying for. For Chronic Medicaid, the Medicaid that will pay for a nursing home, the applicant can have up to $31,175.00 in their name in non-retirement assets. They can have an unlimited amount of retirement assets so long as they are receiving a monthly a maximized monthly distribution. An irrevocable pre-paid funeral is also considered an exempt resource. You did not mention whether your Mother was married or single, where the applicant is married and there is a spouse living in the primary residence that residence is also exempt. With respect to the five-year lookback, that is a requirement for Chronic Medicaid only (there is no lookback for Community Medicaid – the Medicaid which covers the cost of homecare). The lookback refers to the concept that upon entering the Nursing Home and applying for benefits the applicant must provide full financial disclosure for the five-year immediately prior to institutionalization for herself and her spouse assuming she is married. In the event that the applicant transferred any assets out of his or her name, there will be a penalty assessed unless those transfers are considered “exempt” transfers for the purpose of applying for Medicaid. Transfers which will be considered exempt are; transfers to the spouse (this is the concept of Spousal Refusal in New York); transfers to a disabled child; transfer of the primary residence to a “caretaker child” this is a child who has lived with the parent requiring Nursing Home care for the two years immediately prior to institutionalization providing some level of care support and finally transfers of the primary residence to a sibling with an equity interest who lived in that residence for one year prior to institutionalization. Transfers other than those listed, in most cases will create a period of Medicaid ineligibility. In all cases when dealing with the possibility of long term care it is important to consult with an elder law attorney who concentrates in this area. In most cases there are planning techniques which can help to alleviate if not eliminate the financial burden when facing the cost of Nursing Home care.

By Robin Burner Daleo, Esq.

The Consumer Directed Personal Assistance Program

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 13 Sep 2024 16:43:27 GMT

Question:

My mother is currently applying for homecare Medicaid benefits. We have an aid that we have grown to love and trust and are hesitant to switch to the Medicaid approved aid once my mother’s application is approved. A friend told me that Medicaid has a new program under which Medicaid recipients and their families can choose their own caregiver, even if that caregiver is not a caregiver who has been approved by the local Medicaid agency.

Answer:

What you are likely referring to is the Consumer Directed Personal Assistance Program, commonly referred to is “CDPAP.” However, CDPAP is not new, and in fact, has been operational in New York in one form or another since 1980. CDPAP is a Medicaid funded Personal Care Program that allows self directing seniors or their families to recruit, hire, train and supervise their choice of personal care assistant under the Medicaid umbrella rather than hiring an agency to perform those same services. Here, the consumer is the Medicaid recipient or an authorized family member or friend. This individual is tasked with directing the care of the Medicaid recipient, the end result being that the consumer can hire almost anyone (including in some circumstances extended family members) to perform care tasks that would otherwise be provided by an agency, here the recipient or their representative must be willing and able to make informed choices regarding the care management of the care that they receive. Under CDPAP the individual providing services does not have to be certified to provide those services because the requisite training is done by the consumer and his or her family. An individual who would like to enroll in the CDPAP program must first apply for and be approved for Homecare Medicaid services. Once that application has been approved, the application for CDPAP can be completed.

One great aspect of this program is that it allows seniors who are already receiving care privately, to apply for Medicaid benefits (assuming that they are otherwise eligible) and continue receiving care from that same individual without interruption or disruption. Oftentimes, we see clients who are in your same situation; they are ready to apply for Medicaid benefits but are hesitant to do so because they have a caregiver in place with whom they have established a relationship and a comfort level. In some cases, the family has grown so attached to the caregiver that even though their parent no longer has the assets available to pay for the services provided, the children pay for that caregiver out of their own pocket. Here, the person in need of care could apply for Medicaid and once approved, apply to have that same aid paid by the Medicaid CDPAP program.

It is important to note that the care giver that you choose will have to register with your local department of social services, and the agency will oversee the financial aspects of CDPAP including processing of timesheets and issuance of paychecks.

CDPAP is a terrific program which enables self directing seniors and their families freedom of choice and as a result and increased sense of independence and autonomy for the senior in need of services.

By Robin Burner Daleo, Esq.

Cost of Probating a Will

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 13 Sep 2024 16:32:25 GMT

Question: I am concerned about the cost and time that it will take to probate my will , what is the best way to avoid probate?

Answer: Great question, one that we often get. For starters, Probate refers to the process by which a will is validated by the court. Once a will has been through the process of Probate an Executor is named and granted Letters Testamentary, with those letters the Executor can then carry out the function of settling the Estate of the decedent. A will only requires probate where there are assets that will not pass outside of the will. This process includes collecting the assets of the decedent, paying creditors, and then making distributions according to the directives outlined in the will. While typically this process moves smoothly, there are certain instances where it is beneficial to avoid probate. Where there are minor beneficiaries, disabled beneficiaries, where you are disinheriting someone who would otherwise take under intestacy (most common example being a disinherited child) or where there is property ownership in more than one state are just a few examples of times to avoid probate. Typically, assets that have beneficiary designations, assets that are held in Trust and assets with joint ownership will avoid the probate process organically. Those assets are said to pass by “operation of law.” Although the process varies for collecting such assets, typically presenting an original death certificate together with the completion of some forms will transfer ownership from the decedent to the intended beneficiaries or joint owners without the need for court intervention. While it is important to weigh the pros and cons of a probate proceeding, it is also important to note that in some instances the assistance of the court can be beneficial. It is advisable to speak with an attorney well versed in Estate Planning and Probate matters in order to make sure that you have the plan that is right for you and your beneficiaries.

Navigating New York State Probate

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 03 Jul 2024 16:31:25 GMT

Question:

My father has informed me that he has named me as the executor in his Will, and upon his passing, I will have to “ Probate ” his Will. What does this mean, and what can I expect?

Answer:

Navigating New York State’s Probate Path: A Step-by-Step Guide

Navigating the probate process in New York State can be complex and daunting, especially during an emotionally challenging time. Our probate attorneys help you quickly understand and manage this process. This guide provides a comprehensive overview of the steps involved in the probate process in New York State, clarifying the role of the Surrogate's Court and the importance of validating wills.

Understanding the Probate Process in New York State

The probate process in New York is the legal procedure through which a deceased person's will is validated, and their assets are distributed according to the terms of the will. This process is overseen by the Surrogate's Court in the county where the deceased person lived. The probate process ensures the deceased's debts are paid, and the remaining assets are distributed to the rightful heirs.

Steps Involved in the Probate Process

Filing the Will and Petition: The first step in the probate process is filing the will and a petition for probate with the Surrogate's Court. The executor named in the will or another interested party must submit these documents. Along with the petition, other necessary forms and a death certificate must be provided. The court will then review the documents to ensure everything is in order.

Validating the Will: Validating wills is critical to the probate process. The Surrogate's Court will verify that the will is authentic and was executed according to New York law. This includes ensuring that the will was signed by the deceased and witnessed by at least two individuals. If there are any challenges to the will's validity, the court will address them at this stage.

Appointing an Executor: Once the will is validated, the court will formally appoint the executor named in the will. The executor manages the deceased's estate, pays debts and taxes, and distributes assets to beneficiaries. If no executor is named or the named executor cannot serve, the court will appoint an administrator to perform these duties.

Inventorying the Estate: The executor must inventory the deceased's assets, including real estate, personal property, bank accounts, investments, and any other assets. The inventory must be filed with the court and provide a detailed account of the estate's value.

Paying Debts and Taxes: Before any assets can be distributed to beneficiaries, the executor must pay any outstanding debts and taxes the estate owes. This includes funeral expenses, medical bills, credit card debts, and other obligations. If the estate lacks sufficient cash, the executor may need to liquidate assets to cover these costs.

Distributing Assets to Beneficiaries: After paying debts and taxes, the executor can distribute the remaining assets to the beneficiaries as specified in the will. This step must be carried out carefully, ensuring that each beneficiary receives their rightful share according to the terms of the will.

Closing the Estate: The final step in the probate process is closing the estate. The executor must file a final accounting with the court detailing all transactions during the probate process. The executor is released from their duties once the court approves the final accounting and the probate process is complete.

Common Challenges in the Probate Process

Disputes Over the Will: One of the most common challenges in the probate process is disputes over the will. Beneficiaries or other interested parties may contest the will's validity, claiming it was forged, improperly executed, or influenced by undue pressure. These disputes can prolong the probate process and require legal intervention to resolve.

Locating and Valuing Assets: Another challenge is locating and valuing all of the deceased's assets. Some assets may be challenging to find or may need a clear value. The executor must diligently search for all assets and obtain accurate appraisals to ensure the estate is properly managed and distributed.

Dealing with Insolvent Estates: If the estate does not have enough assets to cover its debts, it is considered insolvent. The executor must prioritize paying creditors in the order specified by law, which can be complex and stressful. Beneficiaries may receive little or nothing in an insolvent estate, leading to further complications.

The Role of the Surrogate's Court: The Surrogate's Court plays a crucial role in the probate process in New York. This court specializes in matters related to wills , estates , and trusts , ensuring that the deceased's wishes are honored and their assets are distributed fairly. The court oversees the probate process, from validating the will to closing the estate, providing guidance, and resolving disputes as needed.

Tips for a Smooth Probate Process

Plan Ahead: Planning is one of the best ways to ensure a smooth probate process. Creating a detailed and legally sound will prevent many common issues during probate. Working with an experienced elder law attorney can help ensure that your will is properly drafted and executed.

Keep Detailed Records: Executors should keep detailed records of all transactions and communications related to the estate. This includes receipts, bank statements, and correspondence with beneficiaries and creditors. Keeping thorough records can help avoid disputes and provide a clear account of the executor's actions.

Seek Professional Assistance: Navigating the probate process can be challenging, and seeking professional assistance is often beneficial. An experienced probate attorney can provide valuable guidance and support, helping you confidently manage probate's legal and administrative aspects.

While complex, the probate process in New York State must ensure that a deceased person's wishes are honored and their assets are distributed fairly. Understanding the steps involved and seeking professional assistance can make the process smoother and less stressful. The Law Offices of Robin Burner Daleo is here to help you easily navigate the probate process, providing expert legal guidance and support. Contact us today to schedule a consultation and ensure your loved one's estate is handled carefully and professionally.

Transfer of House to Children

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 17 Jun 2024 15:59:37 GMT

Question:

My friend suggested that I transfer my house to my children in case I need nursing home care in the future. Is this advisable?

Answer:

In almost all cases our answer to this question is no. Your friend is likely suggesting this because she has heard of the five year look-back. The look-back refers to the time period immediately prior to the filing of a Medicaid application. During this time period the Department of Social Services will review your assets and any transfers that you have made. To the extent that you have made transfers or have too many assets in your name to qualify, further planning will have to be done in before you can qualify for Chronic Medicaid to cover the cost of Nursing Home care. Because of the look-back, in some cases, planning and transfer of assets is recommended.

However, the outright transfer of property raises some concerns. First, it is important to note that should you decide to transfer your home to your child, under the law, that transfer is considered a completed gift. If a time comes that you want it back, your child is under no obligation to transfer it back to you. Once the gift is made, the house becomes an asset of whomever you have transferred it to and accordingly, becomes available to their creditors. Moreover, absent any agreement to the contrary, in the event that your child is married, the house becomes marital property subject to equitable distribution should they later get divorced. Another important consideration when deciding whether to transfer your home to your child is whether you are currently receiving the Enhanced Star benefit or any Veteran’s Exemption. If so, once the transfer is complete, you lose those property tax advantages. Finally, if you transfer the house to your child during your lifetime and they sell it after your death, they will have to pay a capital gains tax on the difference between what you initially paid for the property and the selling price, minus any improvements.

The good news is that there are other ways to transfer property for the purpose of Medicaid planning without the negative consequences listed above. One option is to transfer your home into an Irrevocable Trust for the benefit of your children. You can gain the same protection for the purpose of Medicaid planning without completely losing your rights and interest in the home. I suggest that you consult with an Elder Law Attorney who is familiar with Medicaid planning before making any decisions.

Upcoming Elder Law Seminars

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 12 Jun 2024 18:41:57 GMT

Back to Basics
Estate Planning & Medicaid
With

Robin Burner Daleo, Esq.

Join us for a complimentary informative in person seminar as we discuss both Community and Chronic Medicaid, the qualification process and pitfalls to avoid.

Complimentary Breakfast Included.

Thursday, October 24 at 9:30am
Moriches Bay Diner
62 Montauk Hwy, Moriches, NY 11955
RSVP, Call 631-392-6600

Thursday, November 21 at 9:30am
Heritage Diner

275 NY-25A, Mount Sinai, NY 11766
RSVP, Call 631-392-6600

Signing a Power of Attorney During an Illness

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 07 Jun 2024 18:01:41 GMT

Question:

My mother has just been diagnosed with Dementia. It is in the early stages and she is still very lucid, can she still sign a Power of Attorney ?

Answer:

Irrevocable Trust & Reverse Mortgages

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 22 May 2024 14:53:43 GMT

Question:

My mother owns her home and is considering putting it into an irrevocable trust . She is concerned that if in the future she wanted to take a Reverse Mortgage on the property, she would not be able because the house is owned by a trust, is that correct?

Answer:

The mere fact that a home is owned by an irrevocable trust does not create a scenario where a reverse mortgage is out of the question. An irrevocable trust can take many forms, I assume that your mother is thinking of transferring her home into and irrevocable Medicaid qualifying trust for the purpose of protecting any equity she has in the home should a time come when she requires long term care. As you are likely aware, once an asset has been transferred into a properly drafted trust of this type, and five years have passed, that asset cannot be counted as a resource for the purpose of determining Medicaid eligibility. For many of our clients their home is their most significant asset and protecting it from the cost of long-term care is a great concern, and the comfort of knowing that they can call upon the equity in their home for un-met expenses provides a sense of stability and comfort. A reverse mortgage is a type of mortgage where a homeowner can borrow money against the value of his or her home. No repayment of the mortgage (principal or interest) is required until the borrower dies or the home is sold. A reverse mortgage can provide a homeowner access to this equity in either a lump sum or stream of income. The amount of equity available to the borrower will be calculated taking into account the value of the home as well as the age of the borrower. One factor which will not affect the loan application is the credit of the homeowner/borrower. Up until recently, in most cases homeowners were faced with the choice either of protecting their home from the cost of long- term care or leaving the equity accessible should a time come that they needed to rely on a reverse mortgage. Current products available within the banking industry now offer reverse mortgages on properties owned by irrevocable trusts, assuming certain language is contained in those trusts. The significance of this is that oftentimes, even with a reverse mortgage the home retains a significant amount of equity. Protecting that equity from the cost of long-term care is now possible. Moreover, individuals who have held off on transferring their home to an irrevocable trust for fear of being unable to tap into the equity can now make that transfer knowing that if a time comes that they choose to take a reverse mortgage, it will be possible. It is important to note that reverse mortgages are not for everyone and before entering into a contract it is crucial that you weigh all of your options and consider both the pros and cons of the reverse mortgage.

May is National Elder Law Month

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 03 May 2024 13:47:37 GMT

May is National Elder Law Month, for that reason we have decided to switch from our normal format and answer a question that we are oftentimes asked in our practice, “What is an Elder Law Attorney and why do I need one?”

Answer:

Elder Law is a fairly new and unknown area of the law. As baby boomers and their parents’ age, they are living longer and oftentimes, living with chronic medical conditions. As the cost of long term care continues to spiral out of control and families struggle to meet the needs of their aging members, an experienced Elder Law attorney can help you and your family members establish an estate plan that maximizes protection of assets while ensuring that your loved one has the best care available to them should they face a health crisis. While it is always best to plan proactively, Elder Law attorneys are adept at crisis planning and oftentimes can provide a solution which can preserve assets or save taxes where others you have consulted have told you that no solution existed.

Elder Law attorneys must be familiar with multiple areas of the law - contract law, estate planning , trusts and estate administration , Medicare, Medicaid, health care insurance regulations, Public Health Law, Mental Hygiene Law, the Internal Revenue Code & State and local tax issues. In each instance the issues that we deal with are fact sensitive and the clients must be willing to give us the information that we need to formulate the Elder Law plan. This in itself is oftentimes a struggle as the clientele that we deal with tends to value privacy and are oftentimes reluctant to divulge information regarding their assets and private family issues.

The various disciplines that make up the Elder Law practice are in a constant state of flux. As a result, it requires the Elder Law attorney to spend a great deal of time reading current journals and cases and continuously taking legal education courses. In addition, many Elder Law attorneys meet in informal study groups to read, understand and strategize.

As the facts change, there will likely be different solutions for each client. What works for one client may be totally inappropriate for another. For instance, in one day, we may see two different clients, both clients are 86 years old, own their own homes, and need long-term care. Client A has a daughter, age 55 and Client B has a niece age 55. Client A, on the eve of going into a nursing facility, is advised to transfer her home to her caretaker daughter, who lives with her and has lived with her for more than 2 years. The transfer does not make Client A ineligible for Medicaid. Client B cannot follow the same plan because her niece is not her child.

There are no exceptions for transfers to caregiver nieces. Because we do not have an exempt transfer available to us for Client B I advise Client B to sell the home and advise her that even though no pre-planning has been done, we will likely be able to save more than sixty percent of her aunt’s assets by engaging in crisis planning. Remember - one size fits all – is not the rule. Your Elder Law plan is personal, fact sensitive and requires a careful review of all of the facts and circumstances.

By: Robin Burner Daleo, Esq.

Responsibilities and duties associated with serving as an executor of a will?

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 29 Apr 2024 15:22:18 GMT

Question:

My uncle has informed me that he has named me as the executor in his Will . What are the responsibilities and duties associated with serving as an executor?

Answer:

Being designated as an executor in someone's Will is a significant responsibility involving various duties in managing the deceased's estate. The executor’s primary role include initiating the probate proceeding by presenting the Will to the Surrogate’s Court. Additionally, the executor ensures all legal requirements are met, including filing necessary court documents, notifying beneficiaries, and addressing any legal challenges to the Will.

As an executor, you will be responsible for managing and safeguarding the deceased's assets during the estate administration . This includes identifying all assets, settling outstanding debts and taxes using estate funds, and ultimately distributing the remaining assets to beneficiaries as outlined in the Will.

Additionally, it's important to note that executors are entitled to receive commissions for their services in managing the estate . Commissions are usually calculated based on a percentage of the estate's value. Executors should keep detailed records of their time and activities related to estate administration to support their request for commissions.

If you feel unprepared or unable to fulfill these duties, you have the option to decline the appointment. Alternatively, upon your uncle's passing, you can renounce your role as executor. If a successor executor is named in the Will, that individual can assume the responsibilities.

It is important to understand the complexities of this role and the time commitment involved. If you have any concerns or questions about fulfilling the responsibilities of an executor, it's advisable to have an open conversation with your uncle promptly to discuss the details and ensure clarity about the expectations associated with this role.

Learn more about the importance of updating your Will.

By Robin Burner Daleo, Esq.

Choosing a Guardian for Minors

robin@burnerdaleolaw.com (Robin Burner Daleo) — Tue, 23 Apr 2024 17:01:05 GMT

Question:

My wife and I are in our mid-forties. We have two children ages 10 and 13. Should anything happen to my wife and I, how can I ensure that my sister is given legal custody of my children?

Answer:

No matter how young you are, if you have minor children, it is a good idea to establish an Estate Plan which includes a designation of a guardian for them in the event that both you and your spouse pass away.

Typically, we advise our clients to name guardians for their minor children in their Last Will and Testament . Through your Wills, you and your wife have the ability to designate both a guardian of the person and a guardian of the property for your children. The person you wish to serve as guardian of the person for your children will be responsible for their everyday care. In designating your sister, she would be responsible for providing your children with food, shelter, clothing as well as making decisions about their education, medical care, and religious instruction. The person appointed as the property guardian for your children will have the responsibility of the overseeing and managing of the monies and/or property that is left to your children. You can designate the same person or people to serve in both capacities. You and your wife should also consider designating successor guardians for your children, in the event that the primary designee (your sister) predeceases or cannot care for your children

If both you and your wife were to pass away, it would be up to the Surrogate Court to formally appoint a guardian for your children in accordance with Article 17 of the Surrogate Court Procedure Act. In choosing a guardian , you should be sure to consider who is most suitable for your children. Once a minor child reaches the age of fourteen, the Court will grant them great deference and appoint a guardian based on what is in their best interest taking their preference into account.

Once you choose a Guardian you should inform them of your choice and make sure that they are willing to act in that capacity should the need arise. Make sure that the guardian(s) knows that they do not have authority to act as guardian until they are formally appointed by the Court and familiarize them with the steps they will have to take in order to be appointed. Your designees should know where to find your original Wills, as they will have to file them with the Surrogate’s Court within three months of your death. If they fail to do this, the court presumes they have renounced their appointment.

Another option available through the Surrogate’s Court Procedure Act, is the ability to designate a Standby Guardian for minor children through the execution of a document called a Designation of Standby Guardian. By signing this document, you can designate and authorize the appointment of a guardian who will take over the care of your children in the event of your physical incapacity, mental incapacity, or death. From the time your designated guardian begins acting, they have sixty days to petition to Surrogate’s Court for appointment as legal guardian of your children. The Designation of Standby Guardian document is typically executed when the children’s only parent is seriously ill or in a dangerous line of work, such as the military.

Planning for the care of your children should unquestionably be part of your Estate Plan. An experienced elder law practitioner can aid you in creating and executing Estate Planning documents necessary to ensure that the wishes you have for the care of your children are carried out upon the death or incapacity of you and your wife.

By Robin Burner Daleo, Esq.

Guardianship Possibilities

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 17 Apr 2024 19:04:20 GMT

Question:

My father suffers from Alzheimer’s disease and can no longer take care of himself or his finances. Up until now, I have been helping him but have been informed that I need legal documents in place in order to handle his care and finances. I do not believe he has any documents in place, or that he would be able to sign anything in his current mental state. What options do I have?

Answer:

Advance Directives are needed in order for you to have actual legal authority to act on your father’s behalf. Specifically, a Health Care Proxy would allow you to make medical decisions for your father, and a Durable Power of Attorney would allow you to act on his behalf with respect to his finances. In order to execute these documents, your father would need to have the capacity not only to sign them but to understand what he is signing.

Since you indicated that your father does not have any advance directives in place nor is he able to sign at this point, a Guardianship proceeding is likely your best option. Where there is a mentally incapacitated adult, Article 81 of New York State Mental Hygiene Law enables you to make an application to the Supreme Court to be appointed as Guardian of that individual’s person, property, or both. This involves filing a petition with the Court, setting forth the fact that your father is incapacitated, does not fully understand or appreciate his lack of capacity, and, therefore, is likely to suffer harm if a Guardian is not appointed to protect him.

Once the proceeding is commenced, the Court will appoint a Court Evaluator who will act as the “eyes and ears” of the Court and will visit with your father and interview you, your siblings, and any other interested parties. At the hearing, the Court Evaluator will present a written report and will testify to his or her findings of fact and recommendations as to who, if anyone, should act as Guardian. Ultimately, after hearing all the evidence, the Court will determine whether or not a Guardian is needed, what powers the Guardian will have and who will be appointed as the Guardian.

Once appointed as your father’s Guardian, you will be required to undergo a Court-approved training program. In addition, you will have to maintain financial records and may be called upon to submit an accounting. While time-consuming, once your father has lost the capacity to execute documents detailing his wishes, a Guardianship usually becomes the only option and can ensure that you will be able to assist your father and ensure that he remains well cared for.

By: Robin Burner Daleo, Esq.

Secure Your Assets with Trust Funding

robin@burnerdaleolaw.com (Robin Burner Daleo) — Tue, 06 Feb 2024 19:55:57 GMT

Question:

My parents created an irrevocable trust some years ago, I am the trustee. At the time that they signed the trust, they transferred their home into the trust. I’m not sure if their other assets were transferred into the trust at that time. How do I know if they are in the trust and if they are not, is it too late to protect them?

Answer:

Those are all terrific questions. As you know, Irrevocable Trusts can be used to protect assets in the event that either or both of your parents require long-term care in a Nursing Facility. Nursing Care on Long Island can cost anywhere from $10,000.00 to $14,000.00 for a regular bed. A special medical bed can cost up to $18,000.00 to $20,000.00 per month. Rightfully so, this is an important consideration for many of our clients. For starters, the best way to determine whether and asset has been transferred into the trust is to check the titling of the account. Once a transfer has been completed, the bank statements will name the trust or you as the trustee as owner as opposed to your parents individually. If you are unsure of the title, you can contact the financial institution where the assets are held to confirm that the trust is the owner. To answer your second question, it is not too late to seek to protect any assets which were either inadvertently or purposefully kept out of the trust at the initial funding stage. As you are likely aware, there is a five-year look back when applying for Chronic Medicaid . What this means is that assets transferred into a trust need to be th ere for five years in order to be considered unavailable for the purpose of q ualifying for Medicaid . Should you decide to transfer additional assets into your trust at this time, that transfer will not disrupt the protection you likely already have on the home; it will simply begin a new “look-back” period for this new transfer. Assuming five more years pass, you will have protected these assets as well. In the event that five years does not pass and either of your parents need nursing home care, additional planning will have to be done to attempt to protect all or a portion of those assets. If you have created a trust, it is important that you check to ensure that all of the assets you wish to protect have been transferred into the trust. Periodic review of your Estate planning documents and financial statements with your attorney or financial professional can ensure that the plan you intended is in place and that your assets are protected should a time come when you need care.

Giving A Gift into A Special Needs Trust

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 22 Jan 2024 18:14:00 GMT

Question:

My son who is disabled and collects SSI has an existing Special Needs Trust. My parents would like to give him a gift, can I deposit the money into that trust?

Answer:

That depends. Special Needs Trusts , also know as Supplemental Needs Trusts (SNT) are trusts that protect a disabled individuals own income and assets. Additionally, these types of trusts can allow a disabled individual to receive an inheritance, gift or personal injury settlement while still ensuring that any need based government benefits such as SSI or Medicaid will not be jeopardized. These trust play in integral part in ensuring that the individual remains on government benefits and the monies in the trust are used to supplemental his or her life.

These trusts come in many different forms. For starters it is important to understand whether the trust that your son has is considered a First Party SNT (self-settled) or a Third Party SNT. The most basic distinction is that First Party SNT’s are funded with money that belongs to the disabled individual, in other words funded by the first party. Some examples of money properly deposited into a first party trust would be income earned by the disabled individual or a personal injury award paid out to them. A third-party trust on the other hand would be used in the case of a bequest or inheritance or a life time gift. Here we have money that was never in “the hands of” the disabled individual and therefore is considered third party money appropriately funded into a Third Party SNT. Among the most important distinction in these trusts is how the use of the assets are scrutinized during the lifetime of the disabled individual and then how the money is treated after the disabled individual passes away. In order to maintain the protection afforded by the SNT it is important to ensure that monies are used only for the disabled person and in accordance with all regulations. With a Third Party SNT the creator or grantor can direct where any remaining assets go at the time of the individual’s passing, this is not the case with a First Party SNT. First Party SNT’s require a payback provision that on the termination of the trust, typically triggered by the death of the disabled beneficiary, the trustee shall reimburse the state Medicaid agency for benefits paid to the beneficiary during the existence of the trust. This is the primary reason that it is important to know what type of existing trust you are depositing money into before you make that deposit. Inadvertently depositing third party money into a self-settled trust could create a scenario where a payback is required on monies that should have been protected from that requirement.

To best understand the type of Trust your son has and the requirements, you should consult an attorney in your area that specializes in Supplemental Needs Trust .

Ensuring Your Final Wishes for Remains Disposition

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 08 Jan 2024 13:34:48 GMT

Question:

I am not married; I have been in a committed relationship for twenty years. When I pass away, I wish to be cremated and would like my partner to be in control of my remains. Is there a way to ensure that my wishes will be carried out?

Answer:

Yes, a properly executed document called an “Appointment of Agent to Control Disposition of Remains” will ensure that your wishes with respect to your final disposition will be carried out. New York Public Health Law Section 4201 commonly referred to as New York’s “Final Disposition Law” establishes a “next of kin” hierarchy for final disposition. The law also provides for a mechanism wherein you can legally designate any person as the Agent in control of the disposition of your remains. Executing this document will allow you to bypass the next of kin hierarchy and ensure that your wishes with respect to your final arrangements are carried out. The form provides for the naming of an Agent as well as successor agents should you choose to name them. In addition to naming an Agent to handle your affairs the document also allows you to indicate how you would like your final disposition to be carried out, for example you can give specific directions as to what type of service you would prefer and where you would want your ashes to be scattered.

It may also be advisable for you to consider entering into a pre-funded pre-need funeral agreement . These are agreements, which are entered into with a funeral home of your choice, effectively provide for the complete pre-arranging of your funeral. These agreements can be set up to be revocable or irrevocable. It is important to note that when you are entering into a pre-arrangement for the purpose of Medicaid planning the agreement must be irrevocable. If you have previously entered into a revocable agreement, the agreement can be switched to an irrevocable agreement. Used in conjunction, an Appointment of Agent to Control Disposition of Remains together with a pre-arranged pre-paid funeral arrangement will ensure that your wishes with respect to your final arrangements are carried out in the manner in which an by the person you designate.

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The Importance of Updating Your Will

robin@burnerdaleolaw.com (Robin Burner Daleo) — Tue, 19 Dec 2023 15:36:44 GMT

Question:

It’s been fifteen years since we signed our Will. Although our children are grown, we still want them to get everything. Is there any reason to redo it?

Answer:

Great question and one that we are asked often. While it may be the case that the Will is sufficient, there are several reasons that, at a minimum, you should consult with an attorney, have it reviewed, and see whether there is any additional estate planning that you should consider. While a basic Will that leaves everything to each other and then your children may be your ultimate goal, there are specific planning techniques that you can take advantage of to protect your assets.

First, an outright bequest of all your assets to your spouse may not be appropriate. As we age, the chance for long-term care, either at home or in a facility, becomes more of a possibility. When the first spouse dies, it may be necessary for the second one to apply for Medicaid to assist in the cost of home care or nursing facilities. Medicaid is a need-based program that has certain income and asset limits. If all of the assets pass directly to the spouse, this could disqualify them for benefits. A typical planning technique in our practice is to leave assets to a Martial Trust or Supplemental Needs Trust for the benefit of the survivor. This would enable asset protection in the event the survivor needs long-term care.

Second, you may want to consider how you leave your children their inheritance. It is common to leave the bequest outright. This can be problematic if your child is on government benefits, has creditor issues or is going through a divorce. A strategic planning technique is to leave your children their inheritance within a descendance trust. This will offer protection from creditors and divorcing spouses. Also, you have the option of making your children their own Trustee of the Trust or naming a third-party Trustee. Additionally, you may want to consider having a trigger Supplemental Needs Trust within the Will. This will allow inheritance to be protected in the event that one of the beneficiaries becomes disabled and reliant on government benefits. The inheritance will be paid to a Supplemental Need Trust and their government benefits will not be interrupted. The money in the Trust can be used to support their other needs.

Finally, during your consultation it will be prudent to discuss other estate planning – including advanced directives (i.e health care proxy and power of attorney) and setting up a lifetime trust. These additional estate planning documents are crucial in making sure all of your goals and needs are met, including asset protection. As we get older, the goal of estate planning can sometimes change and it is important to review these documents every few years.

Transfer House to My Children

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 27 Nov 2023 15:16:35 GMT

Question:

My friend suggested that I transfer my house to my children in case I need nursing home care in the future. Is this advisable?

Answer:

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Make Pre Paid Funerals Part of Your Estate Plan

robin@burnerdaleolaw.com (Robin Burner Daleo) — Thu, 09 Nov 2023 21:00:47 GMT

Question:

My father is in his eighties and although he is in good health, he would like to plan and pay for his funeral now. Does it make sense for him to do this?

Answer:

Yes, it does make sense to make plans for your father to make and pay for his own funeral arrangements. Many people pre-arrange and pre-fund their funerals as part of their estate plan . This arrangement can be done by either (1) going directly to the funeral home of your choice whereby the funeral is partially or fully pre-paid through the establishment of a funeral trust with the funeral home as trustee, or (2) the money can be deposited into a bank passbook account for the benefit of the funeral home.

Advantages of pre-planning and pre-funding one’s funeral expenses include peace of mind for the individual pre-arranging, the ability to make personal and specific selections for the funeral service, relieving the financial and emotional burden on loved ones, and for purposes of Supplemental Security Income/Medicaid can serve a spend down when necessary. A pre-need funeral trust allows recipients of SSI/Medicaid to set aside money to fully fund the funeral service of their choice before their funds are exhausted down to necessary eligibility levels or these government sponsored programs.

New York State mandates that prearrangements with New York funeral homes be revocable, except for SSI/Medicaid recipients. This means that all prearrangements (except when prepared for Medicaid spend down purposes) may be canceled at any time prior to death and the entire balance, including all accrued interest, must be refunded within ten (10) days of the request. New York State Law also mandates that pre-need burial trusts for applicants or recipients of SSI/Medicaid be irrevocable. This means that the prearrangement may not be canceled prior to death nor can funds be refunded if the actual funeral costs are less than then funded agreement. Thereby, an individual with a revocable agreement would have to convert it to an irrevocable agreement if they were to require Medicaid in the future

Regardless of whether the prearranged funeral agreement is revocable or irrevocable, your father or his children (after his death) can change the funeral home of choice at anytime. In New York, a funeral home is obligated to transfer the monies to the new funeral home within ten days of the receipt of a request to do so.

If he decides to pre-pay his funeral expenses, he should advise his family that he has done so and place the agreements receipt in a safe place so that there is no confusion about the arrangements in the future.

Preserving Government Benefits for Your Special Needs Child: A Smarter Way to Plan

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 25 Oct 2023 18:36:48 GMT

Question:

My husband and I are getting ready to prepare our wills for the first time. We are in our late fifties and have three children; our youngest son is disabled and receives government benefits in the form of Supplemental Security Income and Medicaid. A friend of mine recently told me that me that we would have to disinherit him to prevent him from losing his government benefits. We really hate the idea of disinheriting any of our children, is there another way to handle this?

Answer:

You do not have to disinherit your son to ensure that he does not lose his government benefits. There are many misconceptions regarding Estate Planning for families with Special Needs children . The most common of those misconceptions is that the only way to ensure that a disabled child will continue to benefit from State administered programs is to disinherit him.

As you know, government benefits are designed to provide basic necessaries such as food, shelter and clothing. With proper planning, a Special Needs Trust can be used as a vehicle to pass assets to a disabled beneficiary while protecting his government benefits. Because the assets are held in trust, they can be used to enhance the quality of life of the beneficiary without making him ineligible for needs based benefits such as Medicaid or SSI.

A Special Needs Trust can be created, either in a Last Will & Testament or in a separate stand-alone document. When properly drafted, a Special Needs Trust permits a disabled person to inherit, while still maintaining their much needed government benefits. However, rather than permitting the disabled individual to inherit outright, the monies are directed to a trust which is managed by a chosen trustee. The trustee is charged with administering the trust and the assets held in the trust. Trust assets can be used to supplement, not supplant, the benefits that your child is receiving. For example, the money in the trust could be used to pay for comfort items such as clothing, entertainment, computers, home appliances and any number of quality of life enhancing expenses. Trust money can also be used to cover expenses that government benefits do not cover such as additional medical or dental needs, special equipment, or special dietary needs. An added benefit to creating a SNT during your lifetime (as opposed to in your Last Will and Testament) is that your extended family may make gifts to the trust, either during their lifetime or when creating their own estate plan.

For those with disabled beneficiaries, the importance of early planning is immeasurable. Failure to plan could result in a direct inheritance causing a beneficiary to be ineligible for crucial government benefits. It is especially important to consult an attorney who is well-versed in the area of Special Needs planning so as to ensure that your estate plan takes into account the unique needs of your child. As you know, every child and every disability is different and the trust that you draft for your child should reflect their special and unique circumstance.

Should I Create an Irrevocable Trust Even Though I Do Not Own a Home?

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 11 Oct 2023 20:43:41 GMT

Question:

I do not own a home, but I am concerned about protecting my assets? Is it worth it to think about creating an Irrevocable Trust?

Answer:

Yes. As you know, an Irrevocable Trust , often referred to a Medicaid qualifying trust , is a trust that you create with the idea of protecting assets should a time come that you require long term care at home or in a nursing facility. You as the Grantor, also referred to as the Creator or the Settlor, create and fund the trust with assets that you are looking to protect. You must name someone other than yourself or your spouse as trustee to manage the assets that are held in the trust. You will also name beneficiaries just as you would in a last will and testament to state who will receive the trust assets upon the death of you and your spouse. Once you have transferred assets into a properly drafted Irrevocable Trust and they have been there for a period of five years, they will be considered unavailable if you need to apply for Medicaid to assist with the cost of your nursing home care. The assets are deemed protected the month after funding the trust if you are applying for Medicaid to assist with the cost of at home care. Oftentimes the trust is used primarily to protect the home and other assets are added to the trust as a secondary concern. However, for many of our clients who do not own real property, the trust can be just as useful in protecting assets. For example, most non-qualified (non-retirement) assets can be transferred into an Irrevocable trust, including brokerage accounts and non-qualified annuities. In addition to the benefit of asset protection, the trust will also provide for orderly management of your assets during your lifetime as well as avoidance of probate at death.

As the grantor, you are entitled to all income generated from trust assets and the income is taxable to the grantor directly. In fact, most financial institutions can arrange for the income to be sent to you directly on a regular basis, which eliminates the need for the trustee to periodically transfer the assets. In a properly drafted trust the grantor has the right to change beneficiaries and trustees at any point giving some flexibility to the otherwise ominous sounding “irrevocable trust.” So regardless of whether you own a home or not, you should visit with an elder law attorney to discuss the type of assets you own and how you can protect them.

https://www.nycourts.gov/ip/gfs/Article_81_Law_2008.pdf

Attorney Named to the 2023 Super Lawyers and Rising Stars Lists

robin@burnerdaleolaw.com (Robin Burner Daleo) — Thu, 05 Oct 2023 15:38:36 GMT

The Law Offices of Robin Burner Daleo, PLLC, is pleased to announce the recognition of one of its attorneys in the 2023 New York Metro Super Lawyers listings. Robin Burner Daleo, the firm's Founding Partner, has been recognized on the Super Lawyers list, acknowledged for her expertise in Trusts and Estates.

A Thomson Reuters business, Super Lawyers is renowned for identifying outstanding lawyers across diverse practice areas who have garnered substantial peer recognition and demonstrated exceptional professionalism. This distinction is achieved through an extensive process, combining impartial research, peer nominations, and peer evaluations, resulting in a trustworthy, comprehensive, and diversified roster of exceptional legal practitioners. Annually, less than five percent of lawyers within a state are selected as Super Lawyers, with no more than 2.5 percent attaining the title of Super Lawyers Rising Stars.

The inclusion of Robin in this prestigious group underscores their exceptional professional accomplishments and the esteem they've garnered among their peers.

Advance Directives - Health Care Proxies vs. Living Wills

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 25 Sep 2023 17:24:15 GMT

Many have wondered if a Health Care Proxy and a Living Will are the same thing. While some attorneys prepare a single document that includes both a Health Care Proxy and a Living Will, these two directives serve very different purposes.

A Living Will is an advance directive that sets forth your desires with respect to refusing or accepting end-of-life medical treatment in the event you can no longer communicate your wishes directly. A Living Will is meant to be relied upon should the time come that you are suffering from an incurable illness with no hope of recovery. You may specify in a Living Will which treatments you wish to forego, although it is not a requirement. Certain treatments that you may want to specifically mention are receipt of cardio-pulmonary resuscitation, dialysis and receipt of blood products. A Living Will also allows you to specify that should you be suffering from such an illness, you no longer wish to be given artificial nutrition or hydration merely as a means to prolong your life.

A Health Care Proxy , on the other hand, allows you to designate an agent to make health care decisions for you in the event you become unable to make them for yourself. This document often contains language allowing your health care agent to hire and fire physicians and health care professionals. Recent federal regulations, specifically “HIPPA,” or the Health Insurance Privacy and Portability Act, make it difficult for anyone, even a spouse, to obtain any medical information on your behalf absent a properly executed Health Care Proxy. This could become necessary in circumstances either (a) outside the scope of the health care decisions you outlined in your Living Will; (b) made on a temporary basis. While a Living Will only pertains to decisions at the end of your life, such as when you are terminally ill or in some other life-threatening state, a Health Care Proxy allows the agent to make all health care decisions for you, even mundane ones, if you are unable to do so on your own.

You are never too young or too old to consider your preferences and what treatment you want. However, you can become too sick or incapacitated to communicate your health care wishes, leaving your care and treatment to the mercy of others who, despite their good intentions, would make choices that are not right for you.

What Type of Trust is Best for You?

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 01 Sep 2023 18:41:27 GMT

Question:

My husband and I created a trust many years ago. I am not sure whether this trust will protect our assets should we need Medicaid in the future. I am also unsure of what other documents we have in place. How do I know whether the trust that we have will protect our assets?

Answer:

This is a great question and unfortunately, one that is asked too late in many cases. Initially, it is important to note that Revocable Trusts do not offer asset protection for the purpose of Medicaid planning in any situation. In most cases, a Medicaid Asset Protection Trust will be an Irrevocable Trust, created and funded by you. There are other trusts that may offer protection for the purpose of Medicaid planning, but we will limit our discussion to the basic Irrevocable Trust. An indication of whether the trust is Revocable or Irrevocable will typically appear in the name of the trust, however, if you are unsure, you should contact the drafting attorney and ask him or her for an explanation of the type of trust that you created. If you created an Irrevocable Trust, the next consideration is whether that trust was properly funded. Simply creating the trust is not enough, for assets to be protected in that trust; they need to have been transferred into the trust. Typically, this requires transfer papers to be signed by yourself and whoever you named as trustee. In the case of real property, the transfer into the trust will be accomplished by the execution of a deed. Checking whether a particular asset has been transferred into your trust is simple, you can check the title (name designation) on the statement or, if you are unsure call the broker or financial institution who handles the asset, they should be able to confirm who the owner of the account is. Where you have an Irrevocable Trust which has been properly funded, the assets transferred into that trust need to be in the trust for five years for them to be protected for the purpose of Medicaid, this is commonly referred to as the “look back.” Other documents which are equally important are advanced directives. Check to see whether you have a Health Care Proxy, a Living Will and Durable Power of Attorney in place. You should also review who you have chosen as you agents under each of these documents, and make sure that you are still comfortable with these choices. In the event that you want to make changes to these documents, in most cases, the changes can be made with relative ease. Now is a great time to review all of you important documents to be sure that you are protected in the future.

Empowering Individuals: How Advance Directives Safeguard and Honor Personal Wishes

robin@burnerdaleolaw.com (Robin Burner Daleo) — Thu, 17 Aug 2023 17:07:09 GMT

Question:

Answer:

Advance directives are needed in order for you to have actual legal authority to act on your father’s behalf. Specifically, a Health Care Proxy would allow you to make medical decisions for your father, and a Durable Power of Attorney would allow you to act on his behalf with respect to his finances. In order to execute these documents, your father would need to have the capacity not only to sign them but to understand what he is signing.

Understanding DNR vs. Living Will in End-of-Life Choices

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 26 Jul 2023 14:55:14 GMT

Question:

Is a DNR (“Do Not Resuscitate”) the same thing as a Living Will?

Answer:

No, a DNR is a document that states that you do not want "cardiopulmonary resuscitation" in the event that you suffer from either cardiac or respiratory arrest. Resuscitation includes, but is not limited to, mouth to mouth, direct cardiac injection, intravenous medication, electrical defibrillation, and open-chest cardiac massage.

A DNR is often executed when an individual is temporarily residing in a hospital or skilled nursing facility. A non-hospital DNR order can be established for someone living in the community. A DNR is not executed by an attorney but rather by an attending physician. The physician issues the DNR on a standardized New York State Department of Health form . This form must be used and is the only form recognized. It becomes effective immediately upon signing. The DNR must be reviewed by a physician every seven (7) days for a hospitalized patient; every sixty (60) days for a nursing home patient; and every ninety (90) days for non-hospitalized individuals. A Living Will, on the other hand, is a document that you would execute while you are well. Oftentimes this document is executed as part of your estate planning.

The Living Will is the document that memorializes your wishes with respect to end of life medical treatment and intervention in case the time comes that you are no longer able to express your wishes. In executing a Living Will, an individual can let it be known that if the time comes that they are suffering from an incurable illness, with no hope of recovery, they do not want to be kept alive artificially. Although there is no statute in the State of New York which specifically recognizes Living Wills, there are both state and federal court decisions that have established the right of an incompetent patient to have his or her wishes respected, as long as those wishes are known. New York law requires clear and convincing evidence of what the patient would want. Of all the various acceptable forms of evidence, a Living Will is often the best evidence of those wishes. It simply documents a person's wishes concerning treatment when those wishes can no longer be personally communicated.

As you can see, the DNR and the Living Will are both crucially important documents; however, they serve two very distinct purposes. It is important when executing these documents that you understand what you are signing and that you express your wishes to your loved ones in the event that they are in the difficult position of having to make end of life decisions for you.

Preplanning for Long Term Care

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 21 Jul 2023 14:13:25 GMT

Question:

My Aunt, who is widowed with no children, recently fell and broke her hip. She will need long term nursing care. She owns her own home, which is worth approximately $250,000.00 and has $200,000.00 in an Annuity. She has not done any planning, is it too late to for her to protect some of her assets?

Answer:

No, although pre-planning is always recommended, it is never too late. As you likely know, the cost of Nursing Home care on Long Island averages $12,000.00 per month. Medicare does not pay for Nursing Home Care (with the exception of Rehabilitation), nor does private health insurance. This leaves Medicaid and private pay as the payment sources for Long Term Nursing Home Care. Medicaid is a means-tested program, in order for your Aunt to be eligible for Medicaid to pay for her stay, she must first meet certain asset requirements. An applicant for Medicaid may have no more than $14,250.00 in her name; this figure is exclusive of retirement assets, which are exempt so long as they are in payout status. In addition, she is permitted to have an irrevocable pre-paid burial account. It is also important to note that when applying for Medicaid, the Department of Social Services will “look back” five years at your Aunt’s financial statements. The purpose of this look-back is to see whether she has transferred any monies out of her name in the five years prior to the application for Medicaid. While certain transfers of assets are exempt, the general rule is that transfers in the five years immediately preceding the application for Medicaid will create a penalty period during which an applicant will not be eligible to rely on Medicaid as a pay source.

All that being said, even though your Aunt requires Nursing Home care now and has not protected her assets, she still may be able to protect up to fifty percent of her assets. Promissory Note planning can be implemented; even at the last minute, and can, in most circumstances, enable the applicant’s family to preserve a large portion of the assets that would otherwise need to be spent down in order to pay for care.

In summary, while pre-planning is always preferred, asset protection is possible at any time. A consultation with an Elder Law attorney who is well-versed in the Medicaid guidelines would be a prudent next step for you.

Medicaid Qualifying Trust for Asset Protection and Management

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 30 Jun 2023 16:40:07 GMT

Question:

What is an irrevocable trust? My parents are considering creating one to protect their assets.

Answer:

Grantors commonly designate their children as Trustees. If the ownership of the residence is transferred to the Trust, the right to live in the premises during one’s lifetime is retained. However, the house could be sold if need be and replacement property could be purchased by the Trustee. Any property tax exemptions that you were entitled to prior to placing your residence into an Irrevocable Trust, including Senior Citizen and STAR are also retained. If the Grantor decides to sell their home, the Trustee can do so on their behalf and the Trust would then hold the liquid funds resulting from the sale. Liquid funds, such as bank accounts, money market accounts, certificates of deposit, stocks, and bonds can also be transferred into your Irrevocable Trust. If the Irrevocable Trust holds title to such investments, the Grantor would continue to earn all the income from the investments but would not be entitled to the principal. With respect to asset protection, once property, in the form of real estate or liquid assets, has been in a properly drafted Irrevocable Trust it is not considered an available resource in determining Medicaid eligibility for nursing home care. Hence, there is a five year look back that renders the grantor ineligible for nursing home Medicaid. Therefore, planning early is essential to your Estate Plan .

Essential Legal Steps for Parents: Preparing Your 18-Year-Old for College and Adulthood

robin@burnerdaleolaw.com (Robin Burner Daleo) — Thu, 15 Jun 2023 13:04:53 GMT

Question:

My child is 18 and leaving for their first year of college in September. Someone told me that there were some legal documents that I should have in place.

Answer:

Yes, she is correct. With so much to worry about during this time it’s hard to imagine that you also have to consider the legal implications of your child reaching “adulthood.” Yes, that’s right, in New York eighteen is the age of legal majority and along with it comes a legal emancipation from your parents. Simply stated once your child turns eighteen, they are capable legally of making their own decision which include financial and medical decisions. Although in most circumstances children who are eighteen still rely strongly on their parents for assistance with decision making, legally parents are no longer able to access certain information without appropriate legal documentation. The documents that we typically recommend are a Health Care Proxy, Living Will and Power of Attorney.

The health care proxy will designate who should make medical decisions for your child if your child is unable to make those decisions for him or herself. This will allow you to have access to medical records and have discussion with doctor that you would normally be prevented from having due to HIPAA privacy regulations . Your child can designate a primary agent and successor agents, in a specific order. It is important to note that you cannot have more than one agent at a time to serve as health care agent.

The living will memorialize your child’s wishes with respect to end of life treatment and the withholding or withdrawal of treatment which serves only to prolong life without reasonable expectation of recovery. This document typically also states wishes with respect to administration of pain medication. This document will come up if end of life decisions need to be made on behalf of your child.

The power of attorney document is a document in which your child can appoint an agent, this individual would be able to step into the shoes of your child and act on his or her behalf with respect to all financial and business decisions. This document would allow someone to pay bills, access bank accounts, deal with financial institutions and if need be handle any business matters. Absent this document should your child become incapacitated a proceeding in court would be required to have someone appointed to handle these matters.

Hopefully your child will not need you to rely on these documents but having them in place becomes invaluable in the event you need them. Before your child goes off to start a new chapter in his life, they should consult an Estate Planning Attorney in your area to set up these documents.

What is an Irrevocable Trust?

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 09 Jun 2023 17:14:35 GMT

Question:

What is an irrevocable trust? My parents are considering creating one to protect their assets.

Answer:

An Irrevocable trust can come in many forms. Your parents are likely considering is what is commonly referred to as a Medicaid Qualifying Trust . In New York, a properly funded Medicaid Qualifying Irrevocable Trust can provide for both asset protection and asset management. The creation of an Irrevocable Trust would allow your parents to place their home, and any asset they wish to protect, into the Trust to be managed by a third-party Trustee according to the provisions of the Trust. Neither the Grantor (the creator) of an Irrevocable Trust, nor their spouse, may function as the Trustee. Grantors commonly designate their children as Trustees. If the ownership of the residence is transferred to the Trust, the right to live in the premises during one’s lifetime is retained. However, the house could be sold if need be and replacement property could be purchased by the Trustee.

Any property tax exemptions that you were entitled to prior to placing your residence into an Irrevocable Trust, including Senior Citizen and STAR are also retained. If the Grantor decides to sell their home, the Trustee can do so on their behalf and the Trust would then hold the liquid funds resulting from the sale. Liquid funds, such as bank accounts, money market accounts, certificates of deposit, stocks, and bonds can also be transferred into your Irrevocable Trust. If the Irrevocable Trust holds title to such investments, the Grantor would continue to earn all the income from the investments but would not be entitled to the principal. With respect to asset protection, once property, in the form of real estate or liquid assets, has been in a properly drafted Irrevocable Trust it is not considered an available resource in determining Medicaid eligibility for nursing home care. Hence, there is a five year look back that renders the grantor ineligible for nursing home Medicaid. Therefore, planning early is essential to your Estate Plan.

Updating Trusts to Protect Your Assets

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 29 May 2023 19:12:01 GMT

Basic Estate Planning

robin@burnerdaleolaw.com (Robin Burner Daleo) — Tue, 16 May 2023 17:56:59 GMT

Planning for a Loved One with a Disability: How Supplemental Needs Trusts Can Be Invaluable Tools

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 03 May 2023 16:23:50 GMT

Discover the importance of supplemental needs trusts in planning for loved ones with disabilities. RBD Law provides invaluable tools for secure financial support.

Why Everyone Needs a Will?

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 17 Apr 2023 12:22:26 GMT

However, relying on the laws of intestacy ignores the desires of those who may want to deviate from what the law presumes you would want. Additionally, just as the law presumes the individuals who would inherit your estate, the law also creates an order of priority as to who would serve as the fiduciary of the estate. This is known as the Administrator of the estate. For unmarried individuals with children, the law states that any child can serve, creating a potential for conflict if multiple children want to serve and disagree with how to manage the administration of the estate.

The laws of intestacy also do not provide for the opportunity for any estate tax planning . If your estate is valued at larger than the current New York estate tax exemption, there are planning opportunities available in your Will to leave more assets tax free to the remainder beneficiaries after your spouse. However, without a Will this opportunity is lost.

While having a Will prepared by an attorney comes with a cost, the long-term benefits of having a well thought out estate plan are immeasurable.

What is Elder Law and Why is It Important for Seniors?

robin@burnerdaleolaw.com (Robin Burner Daleo) — Wed, 05 Apr 2023 13:18:27 GMT

Elder Law is a fairly new and unique area of the law. As baby boomers and their parents’ age, they are living longer and often, living with chronic medical conditions. The cost of long term care continues to spiral out of control as families struggle to meet the needs of their aging members.

The various disciplines that make up the elder law practice are in a constant state of flux. As a result, it requires the elder law attorney to spend a great deal of time reading current journals and cases and taking continuing legal education courses. In addition, many elder law attorneys meet in informal study groups to read, understand and strategize.

As the facts change, there will likely be different solutions for each client. What works for one client may be totally inappropriate for another. For instance, in one day, I see two different clients. Both clients are 86 years old, own their own homes, and need long-term care. Client A has a daughter, age 55 and Client B has a niece age 55. Client A, on the eve of going into a nursing facility, is advised to transfer her home to her caretaker daughter, who lives with her and has lived with her for more than 2 years. The transfer does not make Client A ineligible for Medicaid. Client B cannot follow the same plan because her niece is not her child. There are no exceptions for transfers to caregiver nieces. However, after discussing this matter with Client B, I learn that the niece no longer works but collects social security disability. I advise Client B to transfer the house to a supplemental needs trust for her disabled niece. The result is the same, the house is protected and both clients are eligible immediately for Medicaid to pay for their long term care. On the other hand, the solution is very different. Remember - one size fits all – is not the rule. Your elder law plan is fact sensitive and requires a careful review of the facts and circumstances.

Oftentimes we see clients who are under the mistaken notion that because they did not plan, there is no way for them to protect their assets when faced with a crisis. This is not true. There are still planning strategies that can be implemented which will help to preserve your family’s assets while ensuring that your loved one gets the best care possible.

Community vs. Chronic Medicaid

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 20 Mar 2023 12:57:45 GMT

As people age, the cost of long-term care can become a glaring reality. With the cost of nursing home care at approximately $15,000.00 per month and the cost of 24-hour care in your home at approximately $8,000.00 per month, assets can be depleted quickly. Fortunately, the Medicaid program covers the cost of long-term care, whether in a nursing home facility or in your home.

COMMUNITY MEDICAID

Community Medicaid is the program that covers care at home. This program covers the cost of a personal care aide to assist with activities of daily living such as bathing, cooking, dressing, etc.; day programs, transportation to medical appointments, assisted living programs, and some durable medical equipment and supplies.

For 2023, an individual applying for Community Medicaid can have no more than $28,133.00, not including their home, in resources and no more than $1,563.00 in income. Resources include almost any asset whether real estate, bank accounts, investment accounts, or annuities. Qualified funds such as IRAs or 401(K)s are exempt, but the applicant is required to take periodic distributions which are counted as income each month. While these limitations may seem daunting, the good news about Community Medicaid is that, for current applicants, there is no look-back period. That means someone looking to get care at home can transfer assets in one month and be eligible for Community Medicaid in the following month. There is no penalty for transferring assets. However, a law was passed in April of 2020 which would implement a thirty (30) month lookback on asset transfers for Community Medicaid applications. The New York State Department of Health informed the public that the earliest the State will seek to implement this lookback is March 31, 2024.

Moreover, an individual can opt to use a pooled trust or a transfer some of their excess income to a spouse. Excess income would be paid to a pooled trust company and the trustees of said trust would pay expenses for the benefit of the applicant. For example, if the applicant had $2,563.00 in income, they would keep $1000.00 and the balance of $1,563.00 would be sent to the pooled trust. The applicant would submit household bills to the pooled trust requesting payment using the applicant’s excess income.

CHRONIC MEDICAID

Chronic Medicaid is the program that covers nursing home care. The resource eligibility level is the same as the Community Medicaid program; that is $28,133.00. However, any income over $50 must be paid to the nursing home facility. If the applicant has a spouse, the spouse can keep up to $3,715.50 in total income.

Unlike Community Medicaid, Chronic Medicaid has a five-year look-back. The “lookback” refers to the period of time that the Department of Social Services will review your assets and any transfers that you have made. To the extent that the applicant has made transfers or has too many assets in your name to qualify, they will be ineligible for Medicaid until the excess resources are spent down for their care. However, there are some exempt transfers that the applicant can make which will not render them ineligible. For example, if the applicant is married, everything can be transferred to the well spouse, including the house which is exempt if the well spouse resides there. Currently, the regulations that that once all the assets are transferred to the well spouse, they can keep $148,620.00 plus their residence. To the extent that they are over resourced, the spouse would have to sign a spousal refusal wherein they state that they cannot contribute to the cost of care for their spouse, and the Department of Social Services must give the applicant Medicaid. However, there is a catch. While the Department of Social Services must give the applicant Medicaid, they can sue the over resourced spouse for contribution.

In addition to transfers to spouses, applicants with excess resources can also transfer certain assets to a disabled child, siblings with ownership interest in real property, caretaker children and prepay their burial. If even after spend-downs and transfers, the applicant is over-resourced, emergency planning can be down to preserve at least half of the assets.

Medicaid is a complicated program, and the rules are ever-changing. Before applying for any Medicaid program, be sure to consult with an expert. As we always tell our clients, “this is not something you should try at home.”

Comparing Revocable and Irrevocable Trusts

robin@burnerdaleolaw.com (Robin Burner Daleo) — Mon, 06 Mar 2023 13:53:20 GMT

When thinking about what documents you should include as part of your estate plan, trusts often come to the forefront of the conversation. Do I need a trust? If so, what kind? The truth is that there are many kinds of trust, each with different benefits. For simplicity, we can separate trusts into two different classes, to wit: revocable and irrevocable .

Revocable trusts, like their name suggests, allow the creator of the trust total control over the assets they transfer to the trust. They can revoke the trust, change the terms, take things in and out. There is effectively no change in the way you can access the asset in a revocable trust except for the title. The main benefit revocable trusts offer is that they avoid having to probate a Will in order for your beneficiaries to receive their inheritance. If you pass away, without a trust, your Will must be submitted to Court with a petition signed by your nominated Executor and your family members must receive notice of the proceeding. For those that are leaving their estates to their family members, the probate process is not so cumbersome. However, for those that may be disinheriting a family member, probate can become a long and expensive process when relatives are fighting. Revocable trusts avoid this process because the Trustee is authorized to simply distribute the assets in your trust after the creator’s death without any court intervention.

Although executing a Revocable Trust can be extremely beneficial for the creator of the trust, unfortunately, one benefit which cannot be realized from the execution of a Revocable Trust is asset protection for Medicaid planning or tax savings. Because the grantor (creator) of a Revocable Trust maintains complete control over the assets in the trust during their lifetime, and in most cases, acts as trustee of their own trust, assets held in the trust are considered completely available to the grantor. Accordingly, these assets will also be considered completely available should the grantor need Medicaid to pay for long term care, or if the grantor is trying to remove assets from their estate for tax purposes. The good news is that the federal estate tax exemption for 2023 is $12.92 million per person, or $25.84 million per couple. This means, if you pass away with less than these assets, you will not have to worry about federal estate tax. Since the majority of folks do not have taxable estates, we will focus on Irrevocable Medicaid Qualifying Trusts.

The creation of an Irrevocable Medicaid Qualifying Trust allows you to place your home and any asset you wish to protect into a Trust to be managed by a third-party Trustee according to the provisions of your Trust. If you are the grantor of an Irrevocable Trust, neither you nor your spouse may function as the Trustee. Grantors commonly designate their children as Trustees. If the ownership of your residence is transferred to the Trust, you retain the right to live in the premises during your lifetime, yet the house could be sold if need be and replacement property could be purchased by the Trustee. You retain any property tax exemptions that you were entitled to prior to placing your residence into your Irrevocable Trust, including Senior Citizen and STAR . If you decide to sell your home, the trustee can do so on your behalf and the Trust would then hold the liquid funds resulting from the sale. Liquid funds, such as bank accounts, money market accounts, certificates of deposit, stocks, and bonds can also be transferred into your Irrevocable Trust. If your Irrevocable Trust holds title to such investments, you as the Grantor would continue to earn all the income from the investments but you would not be entitled to the principal. With respect to asset protection, once property, in the form of real estate or liquid assets, has been in your properly drafted Irrevocable Trust for a period of five (5) years, it is no longer considered an available resource in determining Medicaid eligibility for nursing home care.

Therefore, although you have not started the process of protecting your assets, there are other benefits which can be realized from the creation and funding of a Revocable trust. However, if asset protection is your goal, you should consult with an experienced Elder Law attorney to determine which course of action is best for your particular circumstance.

Understanding The STAR New York State Tax Relief Program

robin@burnerdaleolaw.com (Robin Burner Daleo) — Fri, 17 Feb 2023 17:22:28 GMT

Basic STAR is available on owner-occupied primary residences where the combined income of the owners is less than $500,000. Enhanced STAR is available to seniors, age 65 and older whose combined earnings were less than $92,000 or less for the 2022-2023 school year and $93,200 or less for the 2023-2024 school year.

Typically, the STAR program offers a reduction on your tax bill and the homeowner pays a lesser amount whenever they pay their tax bill. The big change is that if your income is greater than $250,000.00 and less than or equal to $500,000.00, you will no longer receive a reduction on your tax bill. Instead, you will now receive a check for the STAR credit. Homeowners that fall within this category, will receive a higher tax bill than in years past and may be caught off guard. It is important to plan accordingly and understand your eligibility for the STAR program. Additionally, if your income is $250,000.00 or less and you currently receive the STAR exemption, you can choose to register for the STAR credit to receive a check instead. This could lead to a greater benefit.

In order to register for the Basic STAR program, you would provide the completed application and copy of your tax bill to your assessor. In order to register for the Enhanced STAR program, you would fill out the Application and Supplement Form along with proof of income. Both applications can be accessed HERE

It is important to note that individuals receiving the Enhanced STAR will have to re-apply each year for the benefit. There is a one-time application that can be completed wherein you authorize the Department of Taxation and Finance to annually verify your income by using your Social Security numbers. This will allow verification to be sent to the assessor each year without filling out a new application.

In addition to the income limits, you must own the home on which you are seeking the property tax reduction and you cannot claim the STAR benefit on any home but your primary. The good news for those that have transferred their homes to trusts is that so long as you are your own trustee or retain the right to reside in the home, you can still claim the STAR exemption despite the fact that you have transferred the house to a trust.

The deadline to enroll in the Enhanced Star Program in Suffolk County is March 1, 2023.

Disclaimer: Hiring an attorney is an important decision which should not be based solely on advertising. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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